# Petition — Santos v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 1017

## Text

;

IN THE

Supreme Court of the United States

October Term, 1975.

No 707568 °

THEODORE JAMES SANTOS, JR.,
Petitioner,
v.

COMMONWEALTH OF PENNSYLVANIA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE COMMONWEALTH
OF PENNSYLVANIA.

RicHARD C, SNELBAKER,
44 West Main Street,
Mechanicsburg, Pennsylvania.

Counsel for Petitioner.

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

REASONS FOR GRANTING THE WRIT .............cecccceees

A. The Decisions Below Fail to Apply the Ruling
Enunciated by This Court in Brown v. Illinois, No.
73-6650 (Decided June 26, 1975) ................

B. The Decisions Below Fail to Accord Proper Weight to
the Flagrancy and Illegality of the Police Conduct
Involved in the Present Case .................44.

ESSE LS tt 8 m2 Bee ne ee el ee ee

ApPENDIx I. (Judgment and Opinions of the Superior Court
of the Commonwealth of Pennsylvania) ..............

Appenpix II. (Judgment and Opinion of the Court of Com-
mon Pleas of Cumberland County, Pennsylvania) .....

Appenpix III. (Judgment and Opinion of the United States
District Court for the Middle District of Pennsylvania )

Al

A22

A37

TABLE OF CITATIONS.

Cases: Page
Adams v. Williams, 407 U. S. 142 (1972) .............0.00. 18, 19
Boyd v. United States, 116 U. S. 616 (1886) .............. 9
Brown v. Illinois, No. 73-6650 (1975) ........ 2, 7, 8, 11, 12, 13, 14,

15, 16, 17, 19
Bumper v. North Carolina, 391 U. S. 543 (1968) .......... 17, 18
Commonwealth v. Bishop, 425 Pa. 175 (1967) ............. 13
ED W. SE, Se le We UE 0» So hede cnwadenccccdccsccescee 10
eG. G, Ge Hs ON CED bec dvdewcscccdceccsccces 18, 19
Whiteley v. Warden, 401 U. S. 560 (1971) ................ 6, 19

Wong Sun v. United States, 371 U. S. 471 (1963) ..... 2, 10, 11, 12

Constitutional Provisions and Statutes:
United States Constitution, Fourth Amendment ..... 3, 6, 8, 10, 12,

13, 14, 17, 20
United States Constitution, Fifth Amendment .......... 10, 12,13
ee SES 6.53 a.cwadenceacees kccnesensoansnns 6
Se i Oe EE 6 0dnseadeeeeegeeeduesenasasaaueseen 2

ee

IN THE

Supreme Court of the United States

OcToBER TERM, 1975.

No.

THEODORE JAMES SANTOS, JR.,
Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE COMMONWEALTH
OF PENNSYLVANIA.

The Petitioner, THEODORE JAMEs SANTOs, JR., prays
that a writ of certiorari issue to review the order of the
Supreme Court of the Commonwealth of Pennsylvania
rendered in these proceedings on July 14, 1975.

OPINIONS BELOW.

The opinion of the Court of Common Pleas of Cumber-
land County, Pennsylvania appears at Appendix II, infra,
pp. A22-A36. The majority, concurring, and dissenting
opinions of the Superior Court of Pennsylvania appear at

2 Petition for Writ of Certiorari

Appendix I, infra, pp. Al-A21 and are reported at 336 A.
2d 423. The Supreme Court of Pennsylvania denied the
Petitioner's Petition for Allocatur without opinion in a per
curiam order entered on July 14, 1975. In response to a
directive to report for commitment under his sentence of
imprisonment, Petitioner's attorneys filed an Application
for a Writ of Habeas Corpus on August 8, 1975, with the
United States District Court for the Middle District of
Pennsylvania. The opinion of the District Court, issued on
September 16, 1975, is presently unreported and appears
at Appendix III, infra, pp. A37-A57.

JURISDICTION.

The order of the Supreme Court of Pennsylvania was
entered on July 14, 1975. The jurisdiction of this Court is
involved under 28 U. S. C. 1257(3).

QUESTION PRESENTED.

Does this Court’s holding in Wong Sun v. United
States, 371 U.S. 471 (1963) as applied in Brown v. Illinois,
No. 73-6650 (decided June 26, 1975), render inadmissible
contraband seized ‘uring the search of a vehicle, which
search was conducted pursuant to a written consent ob-
tained from the operator of the vehicle within nine to ten
minutes after an illegal warrantless arrest, which arrest
was accomplished by the use of deadly force along the
Pennsylvania Turnpike, where Miranda warnings were
given by the arresting officers prior to their obtaining the
written consent?

EIS ATH FeTTo

7 ES en

Petition for Writ of Certiorari 3
CONSTITUTIONAL PROVISIONS INVOLVED.

The constitutional provision involved is the Fourth
Amendment to the United States Constitution:

“The right of the people to be secure in their
persons, houses, papers, and effects, against un-
reasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized”.

STATEMENT.

On November 16, 1972, Theodore James Santos, Jr.,
Petitioner, and a companion were traveling east on the
Pennsylvania Turnpike in a 1966 International Travel All
van, which van was owned and operated by Petitioner and
was registered in California. At approximately 1:30 P. M.
the State Police communications center at Highspire, Penn-
sylvania, broadcast a radio message which described Peti-
tioner’s vehicle, and stated that it “was believed that the
vehicle was carrying a large quantity of marijuana”.

State Trooper Max Seiler, in a patrol car, sighted Peti-
tioner’s vehicle shortly after he had received the radio
message. Trooper Seiler radioed for assistance and fol-
lowed the van until Trooper Robert Geary appeared on the
scene in another patrol car. With one patrol car in front of
the van, and one patrol car at the rear, the Troopers signaled
Petitioner to stop. The officers emerged from their cars
armed with a .30 caliber semi-automatic carbine and a 12
gauge pump shotgun. Petitioner and his companion were
ordered to spread eagle while Trooper Geary covered them
with his carbine. After a patdown search indicated that

4 Petition for Writ of Certiorari

the suspects were unarmed, the troopers returned their
rifle and shotgun to their cars while retaining their hand
weapons in their holsters.

Trooper Seiler then conducted a radio check on Peti-
tioner’s driver's license and owners card while Trooper
Geary read the Miranda warnings from a standard police
form. Petitioner and his companion stated that they under-
stood their rights. Trooper Geary asked for written per-
mission to search the van. Meanwhile, Trooper Seiler re-
joined the group after his license check proved negative
and he then administered the Miranda warnings a second
time. Petitioner asked why he had been stopped. He
was told by the troopers that they had reasonable cause to
believe that his vehicle contained a large amount of mari-
juana. At the suppression hearing, Petitioner testified that
the troopers next told him that there were two ways they
could search the van: they could either present their rea-
sonable cause to a District Justice, and if the District
Justice was satisfied, a warrant to search the van would be
issued, or Petitioner and his companion could give the
troopers permission to search the vehicle. Petitioner then
gave his verbal permission for a search. The troopers then
requested that a paper be signed before the search. Peti-
tioner and his companion were told that the paper was to
protect the troopers from recourse “if something would be
stolen or anything of that nature”. The troopers stated
that if the paper were not signed, they would hold Peti-
tioner and his companion until the investigation was com-
pleted. At trial, this paper was determined to be a written
consent by Petitioner and his companion to search the van.
After Petitioner and his companion had s‘gned the paper, a
search was conducted during the course of which Peti-
tioner opened two combination lock suitcases which the
officers had discovered inside the van. Prior to opening

Petition for Writ of Certiorari 5

one of the suitcases, Petitioner remarked, “Here’s where you
make sergeant”. These suitcases were found to contain a
quantity of controlled substance, later determined to be
marijuana. Petitioner and his companion were handcuffed
and taken to a local State Police barracks.

Critical circumstances of the present case include the
following facts. Only nine or ten minutes elapsed between
the moment Officer Seiler first saw Petitioner’s vehicle and
the point at which Petitioner’s written consent to search
the vehicle was obtained. The stopping of the vehicle,
the spread-eagle search at gun point, the return of the
officers’ weapons to their cars, the reading of Miranda
rights, the driver's license check, the back and forth ques-
tioning which preceded the signing of the consent to
search, and the signing of the instrument itself, all oc-
curred within the space of nine or ten minutes. Further-
more, no evidence was introduced throughout the entire
proceedings which tended to establish probable cause for
the radio broadcast which triggered the arrest and conse-
quent search. No evidence was produced at either the
suppression hearing or at trial which in any way indicated
the source of the information upon which the police broad-
cast was made, nor was evidence introduced as to the
particular nature of the information that led the police to
conclude that Petitioner's vehicle was carrying a large
quantity of marijuana. Finally, there was no evidence
whatsoever of a motor vehicle violation or of any unusual
operation of the van by Petitioner prior to his arrest.

On February 8, 1973, a suppression hearing was held
and on February 26, 1973, a timely motion by Petitioner
for suppression of evidence was overruled and dismissed.
On February 27, 1973, Petitioner waived his right to a
jury trial and on February 28, 1973, Petitioner appeared
for trial before the Honorable Clinton R. Weidner in the

6 Petition for Writ of Certiorari

Court of Common Pleas of Cumberland County, Penn-
sylvania. A verdict was issued on May 21, 1973, in which
Petitioner was held guilty on a single count of unlawful
possession with intent to deliver a Schedule I controlled
substance in violation of Section 13(a)(3) of Pennsyl-
vania’s Controlled Substance, Drug Device and Cosmetic
Act of 1972, No. 64, P. L. —, 35 P. S. 780.113(a)(3). The
question of whether the marijuana seized during the search
of Petitioner’s van was admissible into evidence under the
Fourth Amendment of the United States Constitution was
raised prior to trial by Petitioner in his brief in support of
his motion to suppress evidence. The constitutional ques-
tion was reiterated by Petitioner in his motions for a new
trial and in arrest of judgment. On January 10, 1974, the
trial court issued an opinion holding that the evidence was
properly admitted. Appendix II, infra, pp. A22-A36. On
Apri! 16, 1974, Petitioner was sentenced to a term of im-
prisonment of not less than one nor more than three years.

Upon appeal, the Pennsylvania Superior Court held
that Petitioner was arrested when he was forced to
undergo the gunpoint patdown search outside his van and
that such arrest was illegal because unsupported by prob-
able cause, citing Whiteley v. Warden, 401 U. S. 560
(1971). The Court assumed arguendo that the officers
were similarly not entitled to stop Petitioner's vehicle,
citing Justice Black’s dissenting opinion in Whiteley, supra.
Nonetheless, the Court concluded that the marijuana was
admissible because Petitioner's consent to search was vol-
untarily given and such consent was sufficient to dissipate
any taint resulting from the illegal arrest.

On April 30, 1975, Petitioner's attorneys filed a Peti-
tion for Allocatur with the Supreme Court of Pennsylvania
alleging that the Superior Court's decision failed to give
sufficient consideration to state and federal cases holding

ee ee -

ba canal

Petition for Writ of Certiorari 7

that the fact that a confession, consent or incriminating
statement was voluntarily given may not be enough to
overcome the taint resulting from unconstitutional arrest
or seizure. The Petition indicated the likelihood that your
Honorable Court’s decision in Brown v. Illinois, No. 73-
6650 (decided on June 26, 1975), then pending before
your Honorable Court, would have a major impact upon
the resolution of the question of the present case. On
July 14, 1975, the Supreme Court of Pennsylvania entered
a per curiam order denying the Petition for Allocatur.

In response to an order issued by the Office of the
District Attorney of Cumberland County, Pennsylvania,
directing Petitioner to appear for commitment under his
sentence for imprisonment, Petitioner's attorneys filed an
Application for a Writ of Habeas Corpus with the United
States District Court for the Middle District of Pennsyl-
vania on August 8, 1975. Before the District Court,
Petitioner argued that the facts and rationale of Brown,
supra, required suppression of the marijuana seized during
the search of his van. The District Court affirmed the
decision of the Pennsylvania Superior Court. Appendix
III, infra, pp. A37-A57. In doing so, it completely failed to
make any comparison between the facts of Brown, supra,
and the facts of the present case.

REASONS FOR GRANTING THE WRIT.

A. The Decisions Below Fail to Apply the Ruling Enunci-
ated by This Court in Brown v. Illinois, No. 73-6650
(Decided June 26, 1975).

In Brown v. Illinois, No. 73-6650 (decided on June
26, 1975) this Court held it error to adopt a per se rule
that the Miranda warnings in and of themselves serve to

ee a Se ee ee

8 Petition for Writ of Certiorari

break the causal connection between an illegal arrest and
a subsequently obtained confession, consent, or statement.
This Court then defined the standard to be used in deter-
mining the admissibility of statements induced by the
effects of unconstitutional custody under the Fourth
Amendment. While none of the lower Court’s opinions
in the present case have adopted the type of per se rule
condemned by Brown, supra, it is Petitioner's contention
that the lower Courts failed to correctly apply the test
announced in Brown for determining the admissibility of
statements made while in unconstitutional custody.

The facts of Brown relevant to the present case may
be briefly summarized as follows. Three police officers
went to Brown’s apartment at approximately 5:00 P. M.
While one officer covered the front downstairs entrance to
the apartment, the other two officers broke into the apart-
ment and searched it. The police were investigating a
murder which had occurred a week earlier. One of the
officers had obtained Brown's name from the decedent's
brother, who identified Brown as an acquaintance of the
victim, and not a suspect. As Brown climbed the stairs
leading to the rear entrance to his apartment, he glanced
at a window and saw a revolver pointed at him which was
held by a stranger inside his apartment. Brown was told
not to move and that he was under arrest. Brown was
then searched at gunpoint. No weapon was found. Brown
was then asked his name. When he denied being Richard
Brown, the officers showed him an identifying photograph
which had been given to them by the decedent’s brother;
the officers informed Brown that he was under arrest for
murder, handcuffed him, and escorted him to the squad
car.

During the twenty-minute drive to the station house,
the police unsuccessfully questioned Brown about his true
name. Upon arrival at the station house, Brown was

Ne RN

~~ si > ii at acme teeta Lia

Petition for Writ of Certiorari 9

initially left alone in the interrogation room while the
officers obtained the homicide file. When the officers re-
turned, Brown was given his Miranda rights. The officers
then told Brown that they knew of an incident in which
Brown fired a shot from a revolver into the ceiling o: < pool-
room and that a bullet taken from the ceiling of the pool-
room would be compared with the bullets taken from the
murder victim’s body. At this point, approximately one
hour had elapsed since Brown’s arrest. An officer then
asked Brown whether he wanted to talk about the homi-
cide. Brown said that he did and for the next twenty
minutes the police typed out a series of questions and
answers in which Brown admitted participating in the
murder.

At trial, Brown was found guilty of murder. The Su-
preme Court of Illinois found Brown’s warrantless arrest
was unlawful because not supported by probable cause
but the Court concluded that the giving of Miranda warn-
ings served to break the causal connection between the
illegal arrest and Brown’s statements, and that Brown’s act
in making the statements was sufficiently an act of free will
to purge the primary taint of the unlawful invasion.

Upon appeal, this Court noted:

“Although almost 90 years ago, the Court
observed that the Fifth Amendment is in ‘intimate
relation’ with the Fourth, Boyd v. United States,
116 U. S. 616, 633 (1886), the Miranda warnings
thus far have not been regarded as a means either
of remedying or deterring violations of Fourth
Amendment rights. Frequently, as here, rights
under the two Amendments may appear to co-
alesce, since the ‘unreasonable searches and
seizures’ condemned in the Fourth Amendment
are almost always made for the purpose of com-
pelling a man to give evidence against himself,

——— eS

10

Petition for Writ of Certiorari

which in criminal cases is condemned in the Fifth
Amendment”. Ibid.; see Mapp v. Ohio, 367 U. S.
at 646 n. 5. The exclusionary rule, however,
when utilized to effectuate the Fourth Amend-
ment, serves interests and policies that are dis-
tinct from those it serves under the Fifth. It is
directed at all unlawful searches and seizures,
and not merely those that happen to produce in-
criminating material or testimony as fruits. In
short, exclusion of a confession made without
Miranda warnings might be regarded as neces-
sary to effectuate the Fifth Amendment, but it
would not be sufficient fully to protect the Fourth.
Miranda warnings, and the exclusion of a con-
fession made without them, do not alone suffi-
ciently deter a Fourth Amendment violation.
(Footnote: The Miranda warnings in no way in-
form a person of his Fourth Amendment rights,
including his right to be released from unlawful
custody following an arrest made without a war-
rant or lacking probable cause. )

Thus, even if the statements in this case were
found to be voluntary under the Fifth Amend-
ment, the Fourth Amendment issue remains. In
order for the causal chain, between the illegal
arrest and the statements made subsequent there-
to, to be broken, Wong Sun requires not merely
that the statement meet the Fifth Amendment
standard of voluntariness but that it be ‘suffi-
ciently an act of free will to purge the primary
taint.’ 371 U. S. at 486. Wong Sun thus man-
dated consideration of a statement’s admissibility
in light of the distinct policies and interests of
the Fourth Amendment.”

onan

22

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GEERT: creme on

Petition for Writ of Certiorari 11

For the purpose of determining whether a voluntary
confession or consent to search obtained as a result of a
Fourth Amendment violation is admissible, this Court
announced the following test:

“The question whether a confession is the
product of a free will under Wong Sun must be
answered on the facts of each case. No single
fact is dispositive. The workings of the human
mind are too complex, and the possibilities of mis-
conduct too diverse, to permit protection of the
Fourth Amendment to turn on such a talismanic
test. The Miranda warnings are an important fac-
tor, to be sure, in determining whether the con-
fession is obtained by exploitation of an illegal
arrest. But they are not the only factor to be
considered. The temporal proximity of the arrest
and the confession, the presence of intervening
circumstances, and particularly, the purpose of
flagrancy of official misconduct are all relevant.

The voluntariness of the statement is a threshold
requirement. And the burden of showing admis-
sibility rests, of course, on the prosecution.”

Applying the foregoing test to the facts of Brown’s
case, Justice Blackmun in delivering the majority opinion
of this Court, expressly stated: “We could hold Brown’s
first statement admissible only if we overrule Wong Sun.
We decline to do so.”

The facts of the immediate case present even stronger
arguments for suppression of the evidence seized pursuant
to the illegal arrest than did Brown, supra. Both Brown
and the present case involve constitutionally impermissible
arrests of a similar nature. In both cases the warrantless

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12 Petition for Writ of Certiorari

arrest was determined to be illegal because unsupported
by probable cause (Appendix I, infra, p. A4). In both cases
the arrest was accomplished by the use of deadly force in
an isolated environment. However, in the present case
the temporal proximity between the illegal arrest and the
subsequently obtained statement was much shorter than
that in Brown. In Brown approximately one hour had
elapsed between his illegal arrest and his subsequent con-
fession. In the present case a spread eagle search was
conducted at gunpoint before any conversation occurred.
The consent to search was obtained within the space of
nine or ten minutes afterward, almost simultaneously with
the illegal arrest. In this regard reference should be made
to the concurring opinion of Justice Powell in Brown:
“Thus, with the exception of statements given in the imme-
diate circumstances of an illegal arrest—a constraint I think
is imposed by existing exclusionary rule law—I would not
require more than proof that effective Miranda warnings
were given and that the ensuing statement was voluntary
in the Fifth Amendment sense.” Under the facts of the
present case, Petitioner clearly comes within the protection
of the foregoing rule.

It should also be noted that the Miranda warnings
given in the present case do not constitute an intervening
circumstance that dissipated the initial taint of the illegal
arrest. This result follows from the holding of Brown
itself. Brown’s first statement was preceded by the
Miranda warnings and was separated from his illegal ar-
rest by an interval of over one hour. Yet this Court ex-
pressly held that it could hold Brown’s first statement ad-
missible only if it overruled its holding in Wong Sun, 371
U. S. 471 (1963), which this Court refused to do. The
fact that Miranda warnings were given in the present case
is thus not determinative on the Fourth Amendment issue.

are

oe oe od

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Petition for Writ of Certiorari 13

An examination of the lower Court’s opinions in the
present case indicates that they failed to apply Brown’s
standards in determining the question of the present case.
The decision of the Pennsylvania Superior Court properly
determined the effect of Miranda warnings on the volun-
tariness of the consent to search given. However, having
found a voluntary consent under the Fifth Amendment, the
Court assumed that the Fourth Amendment’s guaranty
against unreasonable searches and seizures was satisfied.
That the Court followed this process is indicated by the
fact that the “taint” or “Fruit of the Poison Tree” question
is disposed of in only twenty lines in the Court’s opinion
(Appendix I, infrc, pp. A7-A8). The opinion also cites
Commonwealth v. Bishop, 425 Pa. 175 (1967) as authority
for the proposition that the “taint” of the illegal arrest in
the present case was dissipated by a sufficient act of free
will. Bishop, supra, does not control the present situation
since it deals with the admissibility of a confession ob-
tained from a sixteen-year old during stationhouse ques-
tioning. The circumstances of Bishop, supra, are not simi-
lar to those of the present case. Furthermore, the opinion
completely fails to consider the extremely short interval,
nine to ten minutes, that elapsed between the illegal arrest
and the procurement of the written consent to search Peti-
tioner'’s vehicle. Additionally, while the Court stated that
the arrest was unconstitutional because unsupported by
probable cause, and that the officers were not entitled to
stop Petitioner's vehicle for investigatory purposes, the
opinion fails to accord any weight to these circumstances
in determining the Fourth Amendment question.

The decision of the District Court correctly observes
that Brown’s precise holding is that Miranda warnings
alone and per se do not ensure that an act is sufficiently a
product of free will to break the causal connection between
the illegality of an arrest and a subsequent statement or

14 Petition for Writ of Certiorari

confession. The Court’s opinion, however, refuses to note
the strong similarity between the facts of the present case
and those of Brown. The opinion decides the question of
the present case by reference to state and federal decisions
entered prior to Brown and fails to accord the holding of
Brown any weight in the determination of the Fourth
Amendment question. At its conclusion, the opinion refers
to the fact that Petitioner and his companion demanded to
know why they had been stopped before they would
acknowledge their Miranda warnings ( Appendix III, infra,
p. A53). The Court then cites this fact as evidence that
Petitioner was not acting under the coercion of the troopers.
To regard such an act as evidence of the exercise of free
will, is highly unrealistic. Such a demand is likely to be
made by anyone, whether intimidated or not, after the type
of sudden and violent encounter with police officers as
occurred in the present case.

Both Jower Court opinions regard the facts that Peti-
tioner participated in the search of his van and stated,
“Here’s where you make sergeant”, prior to opening the
suitcase which contained marijuana, as evidence that Peti-
tioner was not acting under coercion inherent in his un-
lawful arrest (Appendix I, infra, p. A7; Appendix III, infra,
p. A50). Such an approach ignores the fact that the crucial
moment for determining whether Petitioner was acting
under coercion came at the time he signed the written
consent to search the vehicle. Once Petitioner had per-
formed this act, a search of the van was inevitable. Faced
with this inevitability, Petitioner had no incentive to avoid
incriminatory acts. The psychological pressures inherent
in his situation dictated that he cooperate with the troopers
in hope of leniency. Thus, to interpret the foregoing acts
of Petitioner as evidence of an unrestrained act of free will
is highly unrealistic.

— a a a care te ae _

Petition for Writ of Certiorari 15

B. The Decisions Below Fail to Accord Proper Weight to
the Flagrancy and Illegality of the Police Misconduct
Involved in the Present Case.

This Court’s decision in Brown v. Illinois, No. 73-6650
(decided June 26, 1975) expressly requires that a reviewing
court consider the purpose and flagrancy of police mis-
conduct. This factor was not considered in the majority
opinion of the Pennsylvania Superior Court in the present
case. The opinion begins by holding that the arrest was
invalid because unsupported by probable cause (Appendix
I, infra, p. A4), yet the opinion continued through to its
conclusion without ever attaching any taint to this circum-
stance. This is a serious omission since this Court in Brown
attached great weight to the facts that Brown’s warrantless
arrest was unsupported by probable cause and that the
arrest was made under circumstances that could be de-
scribed as investigatory. This Court stated:

“The illegality here, moreover, had a quality
of purposefulness. The impropriety of the arrest
was obvious; awareness of that fact was virtually
conceded by the two detectives when they re-
peatedly acknowledged, in their testimony, that
the purpose of their action was ‘for investigation’
or for ‘questioning’. The arrest, both in design
and in execution, was investigatory. The de-
tectives embarked upon #his expedition for evi-
dence in the hope that something might turn up.
The manner in which Brown’s arrest was effected
gives the appearance of having been calculated
to cause surprise, fright, and confusion.”

The foregoing consideration is directly applicable to
the immediate case. No attempt was ever made by the
Commonwealth at the suppression hearing or at trial to

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16 Petition for Writ of Certiorari

demonstrate the source of, or the reliability of, the infor-
mation on which the radio broadcast was based. The
dissenting opinion in the Pennsylvania Superior Court also
stresses that the arresting officers did not view a motor
vehicle code violation or anything suspicious about the
appearance of Petitioner's vehicle (Appendix I, infra, p.
A19). In fact, under the record of the present case it re-
mains a complete mystery through the present time as to
how and why police attention focused on Petitioner in the
first place. Consequently, the case presents even more
aggravating circumstances on the question of the propriety
of the police conduct than does Brown. In Brown, at the
time of the arrest the police at least possessed information
from the decedent’s relatives linking the decedent with
Brown. In the present case it has not been demonstrated
that the arresting officers, or the officer in charge of the
radio broadcast, possessed any reliable information indi-
cating that Petitioner possessed narcotics. Since no at-
tempt was made by the Commonwealth to establish prob-
able cause for the present arrest, either at the suppression
hearing or at trial, the conclusion is inescapable that v: 1
probable cause never existed. Obviously, the officers au-
thorizing the broadcast issued their radio message with the
knowledge that an arrest would immediately occur and
with the hope that the arrest “would turn something up.”
It is precisely because of this possibility that this Court in
Brown refused to hold that the giving of the Miranda
warnings always dissipates a Fourth Amendment taint.
This Court stated;

“Arrests made without warrant or without
probable cause, for questioning or ‘investigating’
would be encouraged by the knowledge that evi-
dence derived therefrom hopefully could be made
admissible at trial by the simple expedient of giv-

Pe er mr eer

Petition for Writ of Certiorari 17

ing Miranda warnings. Any incentive to avoid
Fourth Amendment violations would be evis-
cerated by making the warnings, in effect, a ‘cure-
all’ and the constitutional guarantee against un-
lawful searches and seizures could be said to be
reduced to ‘a form of words’.”

Accordingly, since no basis was ever established for
the police intrusion throughout the proceedings of the
present case, the fact that the arresting officers happened
to give the Miranda warnings should be discounted.

Furthermore, the manner in which the arrest was
effectuated, in a manner “calculated to cause surprise,
fright, and confusion” is clearly condemned by Brown.
At this point it should be noted that the arresting officers
apparently believed they were dealing with dangerous
suspects. This belief apparently originated with the officer
or officers who directed the broadcast be made knowing
that an arrest involving the use of deadly force would be
made. Until the present time it cannot be determined
whether there was ever a basis for ordering such drastic
action to be taken.

The dissenting opinion in the Pennsylvania Superior
Court notes yet another aspect of police misconduct. After
Petitioner's arrest, but before his consent to search was
obtained, the arresting officers told Petitioner that they
possessed reasonable grounds for his arrest (the officers
possessed no such grounds since, at that time, they were
acting on the basis of totally uncorroborated hearsay):
“Once the appellants were under arrest, the subsequent
‘consent’ was tainted by prior police illegality: the police
told appellants that they had a valid basis for the arrest
when in fact they did not; therefore, appellants merely
acquiesced in that show of force which they assumed was
lawful. They did not voluntarily consent. Bumper v.

18 Petition for Writ of Certiorari

North Carolina, 391 U. S. 543 (1968)” (Appendix I,
infra, p. A20).

Finally, the District Court’s treatment of the police
conduct involved in the present case must be noted. The
Court concluded that the officers were justified in stopping
the van on the basis of this Court’s holdings in Terry v.
Ohio, 392 U. S. 1 (1968) and Adams v. Williams, 407
U. S. 142 (1972). The trial court also felt that the police
conduct of the present case was proper under this Court’s
decision in Adams v. Williams, supra ( Appendix II, infra,
pp. A30-A31). The lower Courts’ applications of Terry
and Adams to the present case are clearly erroneous.

In Terry this Court acknowledged that it is necessary
to make a delicate balancing of the interest of society in
the enforcement of its laws against the individual’s right
to protection against unreasonable searches and seizures
under the Fourth Amendment. Under Terry any intrusion
upon a constitutionally protected interest must be evalu-
ated as to the reasonableness of the particular seizure in
light of the particular circumstances. The “stop and frisk”
in Terry was based upon the police officers’ personal ob-
servations of suspicious conduct. Consequently, Terry
does not justify the stop and arrest of the present case since
here the arresting officers made no personal observations
of any activity of Petitioner or his vehicle which would
justify such stop. However, in Adams v. Williams, supra,
this Court did authorize an investigative stop on informa-
tion supplied by another person. Nonetheless Adams re-
quired that the informer’s tip demonstrate some indicia of
reliability. This Court stated:

“Some tips, completely lacking in indicia of
reliability, would either warrant no police re-
sponse or require further investigation before a
forcible stop of a suspect would be authorized.”
Adams v. Williams, supra, 407 U. S. at 147.

a ne a

en oe

ee

Petition for Writ of Certiorari 19

In the present case, an arrest was accomplished by
the use of deadly force in an isolated environment. The
ultimate basis of this arrest was information of unknown
reliability acquired by the police from an unknown source.
Consequently, the lower courts could not determine, as
required by Terry and Adams, whether a reasonable basis
existed for the initial police intrusion. Accordingly, under
Brown v. Illinois, supra, the lower courts should have ex-
pressly attached some “taint” to the police failure to
demonstrate a reasonable basis for their actions.

The decision of Pennsylvania's Superior Court con-
tains the same failure. At the outset, it does recognize
that the arrest of the present case was not supported by
probable cause and that the police were not entitled to
stop Petitioner's vehicle. Yet, as noted in the preceding
section of this Petition, the decision continues through to
conclusion considering only the voluntary nature of Peti-
tioner’s consent to search. The opinion does not recog-
nize the police activity of the present case as tainted be-
cause of the total absence of any indicia suggesting that
that Petitioner was engaged in criminal activity at the time
of his arrest.

In conclusion, the applicability of this Court’s deci-
sion in Whiteley v. Warden, 410 U. S. 560 (1971) should
be recognized. Whiteley, supra, involved a vehicle stop
and arrest made by the police in response to a radio broad-
cast, a situation very similar to the present case. However,
in Whiteley the police enjoyed the distinct advantage of
the fact that a complaint had been sworn to before a
magistrate and a warrant issued, which warrant served as
the basis of the radio broadcast. This Court held the re-
sulting warrantless arrest unconstitutional because the evi-
dence presented before the magistrate who issued the war-
rant did not amount to probable cause. The State unsuc-
cessfully argued that less stringent standards should be

20 Petition for Writ of Certiorari

employed in reviewing the police officer's assessment of
probable cause in a situation involving a warrantless ar-
rest, than should be employed in reviewing a magistrate’s
assessment before issuing an arrest or search warrant. This
Court rejected the argument on the grounds that such rule
would unwisely encourage officers to evade the warrant
requirement of the Fourth Amendment. The State also
argued that police work would be unduly hampered if the
arresting officers were not entitled to make a good faith
reliance on the radio broadcast in accomplishing the arrest.
This Court pointed out that officers whose aid is sought in
enforcing a warrant are entitled to assume that the warrant
was validly obtained. However where valid probable
cause was not demonstrated to the authority issuing the
warrant, this Court held that an otherwise legal arrest can
not be insulated from challenge by the decision of the
investigating officer to rely on fellow officers to make the
arrest.

Likewise, in the present case the circumstances that
the arresting officers acted in good faith and properly ad-
ministered the Miranda warnings after making the arrest
should not be allowed to obscure the fact that neither they,
nor their fellow officers issuing the radio broadcast, pos-
sessed a reasonable basis for the police intrusion. The
taint attaching to an arrest made without any supporting
basis under the Fourth Amendment should not be ignored
because the arresting officers acted in good faith.

_—

Petition for Writ of Certiorari 21
CONCLUSION.

For the foregoing reasons, this petition for a writ of
certiorari should be granted.

Respectfully submitted,

wu C AKER,
Petitioner.
( Ch

APPENDIX I.

IN THE
SUPERIOR COURT OF PENNSYLVANIA.
PHILADELPHIA DISTRICT.

No. 984 Ocroser TERM, 1974.
| No. 983 Ocroper Term, 1974.

J. 1105
COMMONWEALTH OF PENNSYLVANIA

v.

PAUL RICHARD a/k/a RICHARD ANTHONY HARRIS
and THEODORE JAMES SANTOS, JR.,

No. 983—APPEAL OF THEODORE JAMES SANTOS, JR.
No. 984—ApPEAL OF PAUL RICHARD A/K/A
RIcHARD ANTHONY Harris.

APPEAL FROM THE JUDGMENTS OF SENTENCES IMPOSED
Aprit 16, 1974, sy THE Court oF ComMMoON PLEAs,
CRIMINAL, OF CUMBERLAND County at No. 252
DECEMBER TERM, 1972.

OPINION BY CERCONE, J.: Frtep Marcu 31, 1975.

This appeal arises from the lower court’s entra‘uce of
judgments of sentence against Paul Richard and Theodore
Santos after a non-jury trial. Appellants were found guilty

(Al)

7 Nn OEOEOEe"V

A2 Appendix I

of unlawful possession with intent to deliver a Schedule I
controlled substance; to wit, 225 pounds of marijuana. Ap-
pellants now argue, inter alia, that the lower court erred
in refusing to suppress certain physical evidence and
particular incriminating statements appellants made after
their arrest and request for counsel.

The evidence in the instant case, cast in the light
most favorable to the Commonwealth, is as follows: On
November 16, 1972, State Trooper Max Seiler received
a radio broadcast to the effect that a white International
Travelall, California registration SZH992, with two white
male occupants, had entered the Turnpike at Breezewood
carrying a large quantity of marijuana. Trooper Seiler,
who was in the vicinity, responded to the call and soon
sighted the vehicle heading east. After calling for assist-
ance, Trooper Seiler followed the van until Trooper
Thomas Geary appeared on the scene. With one patrol
car in front of the van and one patrol car in the rear, the
troopers signalled the driver of the van, appellant Santos,
to pull over. Each trooper emerged from his car armed,
and instructed the occupants of the van to get out and
“spreadeagle” against the van. After the “patdown”
proved that the appellants were unarmed, the troopers
returned their weapons to their cars.

While Trooper Seiler radioed that the appellants had
been apprehended, and waited for information concerning
the status of the vehicle registration and appellants’ drivers’
licenses, Trooper Geary gave the appellants their Miranda
warnings and ascertained that they understood them. He
then informed them that the police had reason to believe
that they were transporting a large quantity of marijuana,
and asked appellants if they would permit the troopers to
search their van, advising them as follows:

“I want you to keep this in mind, that if you give me
permission and if we would find anything in the

Appendix I A3

vehicle it would be used against you—I want you to
understand this . . . . You do not have to give me
permission to search the vehicle.”

When Trooper Seiler returned to the van (there were
no irregularities in appellants’ registration or licenses), he
also gave appellants their Miranda warnings and ascer-
tained that they understood them. He then advised appel-
lants that in Pennsylvania they were not required to con-
sent to the search and could demand that the police
produce a warrant. Despite those warnings, Santos and
Richard orally consented to the search. Troopers Seiler
and Geary, however, were reluctant to search unless appel-
lants consented in writing. Both Santos and Richard then
signed a handwritten consent granting the troopers per-
mission to search the van. Appellant Santos then went to
the front seat of the van, removed a box from under the
seat, and extracted a set of keys which he used to open the
tailgate.

There was nothing suspicious about the inside of the
van—it contained suitcases, clothing bags, a cooler, a mat-
tress and blankets. Santos then said, “where would you
like to start;” and, Trooper Seiler selected one of the suit-
cases. Santos thereupon opened the combination lock on
the suitcase and began removing the clothing inside.
Trooper Seiler noticed that among the piles of clothing
there was a tightly rolled newspaper, and upon unrolling
the newspaper, discovered a quantity of marijuana. Un-
daunted, Santos asked where the troopers would next like
to look, and Seiler selected a second suitcase, whereupon
Santos remarked, “Here’s where you make sergeant.”
Santos undid the combination lock and opened the suit-
case which was filled with marijuana packaged in large
bundles. Appellants were then handcuffed and taken to
the local State Police barracks. A subsequent search re-

A4 Appendix I

vealed other large caches of marijuana, similarly packaged,
including 49 kilos concealed in a compartment cut out of
the floor of the van and recovered with the plywood floor-
ing. In all, appellants had been transporting more than
225 pounds of the contraband.

At the suppression hearing appellant Santos cor-
roborated the troopers’ testimony that they had advised
appellants of their rights, including their right to refuse
to consent. Santos alleged, however, that the troopers had
stated that if appellants did not consent, they would im-
pound the van and get a search warrant. Both troopers
disagreed that they had so phrased their advice and ex-
plained why they did not—they were aware that repre-
sentations of the availability of a search warrant could be
construed to be coercive and thereby vitiate the consent.
The question, therefore, was one of credibility properly
left for resolution by the hearing court below.

I.

It appears that under the rationale of Whiteley v.
Warden, 401 U. S. 560 (1971), the state troopers did not
have probable cause to arrest the appellants merely on the
basis of the radio broadcast, nor does the Commonwealth
so argue in the instant appeal. Assuming arguendo that
troopers were similarly not entitled to stop the automobile,’
we are left with two hurdles that the Commonwealth must
surmount in order to justify the search of the van and the
seizure of the marijuana: (1) Did the appellants volun-
tarily consent to the search; and (2) Did the illegal stop-
ping or arrest of the appellants automatically render the
marijuana inadmissible as “fruit of the poisonous tree.”

Although the lower court determined that appellants
were under arrest from the moment the officers ordered

1. gos hy Warden, 401 U. S. at 573. (Dissenting Opinion
by Justice Black. )

ee ee 0 a ee

Appendix I A5

them to “spreadeagle,” and that the arrest was illegal, this
decision of the lower court did not dispose of the question
of whether or not the appellants’ consent to the search was
involuntary. It is true that voluntariness of consent rests
upon all the surrounding facts and circumstances, and
great deference should be given to the decision of the
hearing court since that court has had the opportunity to
observe the appearance and demeanor of the witnesses and
the defendants. As Justice Traynor stated in People v.
Michael, 290 P. 2d 854 (Cal. 1955):

“Whether in a particular case an apparent consent
was in fact voluntarily given or was in submission to
an express or implied assertion of authority is a ques-
tion of fact to be determined in light of all the circum-
stances.”

This rule was cited and quoted with approval in Schneck-
loth t. Bustamonte, 412 U. S. 218 (1973). C-.f., State v.
King, 209 A. 2d 110 (N. J. 1965); Rosenthall v. Henderson,
389 F. 2d 514 (6th Cir. 1968); United States v. Page, 302
F. 2d 81 (9th Cir. 1962).

However, in evaluating the voluntariness of consent,
a variety of factors have achieved great significance in
supporting the conclusion that consent is valid despite the
fact of an illegal arrest. In Armwood v. Pepersack, 244 F.
Supp. 469, 474 (D. Md. 1965), the court, after examining
a variety of federal circuit court cases on the subject,
stated:

“Where the voluntary nature of the alleged consent is
attacked, the court sees no reason to distinguish as a
matter of law between the express or implied ‘coer-
cive’ effect of an illegal arrest, a legal arrest or police
action not amounting to arrest but under the color of

authority.”

A6 Appendix I

The court then concluded that the circumstances surround-
ing the consent in that case clearly indicated that the con-
sent was voluntarily given. See also Alexander v. U. S.,
390 F. 2d 101 (5th Cir. 1968); Gibson v. U. S., 149 F. 2d
381 (D. C. Cir. 1945); U. S. v. Burke, 215 F. Supp. 508
(D. Mass. 1963), affd 328 F. 2d 299 (1st Cir. 1964), cert.
denied 379 U. S. 849; U. S. v. Busby, 126 F. Supp. 845
(D. D. C. 1954); People v. Nawrocki, 148 N. W. 2d 211
(Mich. 1967).

Perhaps the most persuasive fact in concluding that a
consent was voluntarily granted despite the coercive at-
mosphere of an arrest is the furnishing of advice to the
consenter concerning his constitutional rights, especially
his right to refuse to consent. Indeed, in the Third Circuit
the provision of Miranda warnings alone, followed by a
consent to search, is not only persuasive but controlling
on the question of voluntariness. Thus, the court stated
in United States v. Menke, 468 F. 2d 20, 24 (3d Cir. 1973):

“In [Government of the Virgin Islands v. Berne, 412
F. 2d 1055 (3d Cir. 1969)], we held that where a de-
fendant is given the detailed warnings mandated by
Miranda v. Arizona . . . and thereafter ‘voluntarily
submits to interrogation and freely offers information
on the existence and location of specifically identified
evidence, and further agrees to surrender the evidence
to police, fully cognizant of his right to remain silent
and fully aware that the information he provides may
be used against him, the seizure of such evidence does
not violate the Fourth Amendment. In such a case,
the accused, by his words and actions, has abandoned
any privacy or security in the location of the evi-
dence.’ ” ”

2. See also United States ex rel. Harris v. Hendricks, 423 F. 2d
1096 (3d Cir. 1970); United States v. De Larosa, 450 F. 2d 1057
(3d Cir. 1971).

Appendix I A7

In the instant case, it is undisputed that the appellants
were twice given Miranda warnings. It is also undisputed
that they fully understood the substance of the rights of
which they were apprised. The record also demonstrates
that the appellants consented to the search after the
troopers had advised them several times that they need
not consent and could require the police to procure a war-
rant from a magistrate. The fact that appellants were in
custody, and the fact that the troopers initially displayed
their weapons,’ are simply not sufficient to undermine this
clear and convincing evidence of consent, principally be-
cause of the troopers’ repeated explanations of appellants’
constitutional rights under the Fourth, Fifth and Sixth
Amendments, appellants’ understanding of the warnings
and Santos’ active assistance in conducting the search.
See generally Annotation, 9 A. L. R. 3d 858 (1966).

Turning to the question of whether the evidence ob-
tained was fatally tainted as a result of the illegal arrest of
appellants, we note at the outset that “de facto causation”
is not the criterion for determining whether the evidence
was obtained as a consequence of unlawful conduct by the
authorities. As our Supreme Court stated in Common-
wealth v. Bishop, 425 Pa. 175 at 182, n. 5 (1967): “Mere
‘but-for’ causation is not sufficient to establish the causa-
tive relationship necessary to taint the post-illegal arrest
verbal evidence.” Thus, “courts in a number of cases have
applied or recognized that, while the ‘fruit of the poisonous
tree’ doctrine requires the exclusion of all evidence ob-
tained by exploitation of [that initial illegality], it does not
bar evidence gained by means sufficiently distinguishable
to be purged of the primary taint of such illegality.” An-

3. The evidence indicates that after the troopers returned
their weapons to their patrol cars the appellants were at ease and
conversational. Santo’s remark, “Here’s where you make sergeant,”

highlights the ambience of the search.

A8 Appendix I

notation, 43 A. L. R. 3d 385, 398 (1972), quoting from
Wong Sun v. United States, 371 U. S. 471, 487-88 (1963).

In the instant case, we have already determined that
appellants’ consent to the search was free of coercion and,
therefore, “sufficiently an act of free will to purge the
primary taint of the unlawful invasion.” 371 U. S. at 486.
See also Commonwealth v. Bishop, supra. Therefore, the
court properly refused to suppress the evidence seized as
a result of the consensual search of appellants’ van.

II.

The appellants’ second noteworthy allegation of error
is based upon a conversation in the patrol car when
Troopers Seiler and Geary were transporting appellants to
the district justice’s office for arraignment. During that
time Trooper Seiler asked Trooper Geary, both of whom
were in the front seat, if he had seen a recent television
program dealing with the smuggling of marijuana into the
United States from Mexico. Upon hearing this conversa-
tion, Richard, who was sitting with Santos in the back seat,
stated: “If you're ever in California and want marijuana,
see me. At that point Trooper Geary asked Santos if the
marijuana came from Mexico, and Santos answered, “It’s
not mine.” Whereupon Richard immediately admitted:
“It's mine.” Since both appellants had indicated at the
barracks, prior to these statements, that they wished to
speak to an attorney, further questioning of appellants was
clearly improper.

In Miranda v. Arizona,‘ the Supreme Court stated:
“Once warnings have been given, the subsequent pro-
cedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation

Appendix I A9

must cease. At this point he has shown that he in-
tends to exercize his Fifth Amendment privilege; any
statement taken after the person invokes his privilege
cannot be other than the product of compulsion,
subtle or otherwise. Without the right to cut off
questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in
producing a statement after the privilege has been
once invoked.”

While Richard’s initial statement that he would sell
the troopers marijuana if they were ever in California does
not appear to be in response to a question,® Trooper Geary
clearly turned interrogator when he asked Santos about
the origin of the supply of marijuana. Our Supreme Court
defined “interrogation” in Commonwealth v. Simala, 434
Pa. 219, 227 (1969) to be “any question likely to or ex-
pected to elicit a confession.” In the instant case, Santos’
knowledge of the origin of the marijuana would have con-
stituted circumstantial evidence establishing his part in
an illicit joint venture to purchase and transport the con-
traband for sale on the east coast, and would have been
inadmissible in evidence against him since it was elicited
after he requested counsel. However, the evidence of
Santos’ involvement had already been overwhelmingly
established by the fact that his vehicle has been used in,
and had been prepared for, the illegal transportation. His
implicit ‘nowledge of the contents of the luggage made
the inference of guilt irresistible. Further, Santos’ remark

4. 384 U. S. 436 (1966).

5. This remark was clearly blurted-out and, therefore, admis-
sible. As the Supreme Court has stated: “If the defendant, with-
out prodding or inducement by the police which amounts to inter-
rogation, spontaneously confesses or blurts out incriminating
statements, those statements are admissible.” Commonwealth v.
Du Val, 453 Pa. 205, 220 (1973). See also Commonwealth v.
Simala, supra; Commonwealth v. Feldman, 432 Pa. 428 (1968);
Commonwealth v. Eperjesi, 423 Pa. 455 (1966).

Al0 Appendix I

that the marijuana was not his and, from Santos’ point of
view, Richard’s response that the marijuana was his, dem-
onstrates that Santos’ statement was harmless beyond a
reasonable doubt. Therefore, with respect to Santos, no
reversible error was committed by the court in not sup-
pressing the evidence.

Richard, however, was obviously damaged by the
admission: “It’s mine.” Up to that point, the Common-
wealth’s case against Richard was not strong. All the
Commonwealth could prove was that he was a California
resident who was a passenger in a vehicle not owned by
him which was laden with marijuana. Although he signed
the consent to search, any statements he may have made
during the search were not offered into evidence. Nor
did his blurted statement concerning his ability to procure
marijuana in California so damage his case that we can
find his subsequent admission of ownership of the 225
pounds of marijuana to have been harmless beyond a
reasonable doubt. Thus, if we determine that the remark,
“It’s mine,” was in response to an illegal inquiry of him,
Richard is entitled to a new trial.

In the instant case, until Richard admitted owner-
ship of the marijuana, no questions had been directed at
him, only at Santos, against whom the Commonwealth
already had overwhelming evidence. The fact that no
questions were explicitly directed to Richard, however,
cannot and should not be wholly determinative of whether
the conversation between Santos and Trooper Geary was
likely to produce a response from Richard: “[S]ubtle pres-
sures . . . can be applied to encourage or elicit incriminat-
ing statements, and we will look carefully to determine
whether Miranda rights have been violated.” 453 Pa. at
222. Commonwealth v. Mercier, 451 Pa. 211 (1973);
Commonwealth v. Hamilton, 455 Pa. 292 (1971). There-
fore, in situations where the police have used third per-

Appendix I All

sons as instruments of interrogation, the courts have found
Miranda violations. See Commonwealth v. Hamilton,
supra; Commonwealth v. Bordner, 432 Pa. 405 (1968);
Cf. Commonwealth v. Mercier, supra. It is not necessarily
direct questioning by the police which raises the problem
of compliance with Miranda, but “police conduct . . .
calculated to, expected to, or likely to, evoke admissions.”
Commonwealth v. Simala, 434 Pa. 219, 225 (1969). In
the instant case, however, we find that the facts and cir-
cumstances surrounding Richard’s admission that he
owned the marijuana justified the lower court’s conclusion
that, with respect to Richard, the troopers’ conduct was
not likely to evoke such admissions.

The two Pennsylvania cases most like the case at bar
which have condemned analogous behavior by police
posed far stronger cases for suppression. In Common-
wealth v. Hamilton, supra, the police confronted the ap-
pellant with his alleged accomplice knowing that the latter
would accuse the appellant of principal responsibility for
the felony-murder with which they were both charged.
It was admittedly the intent of the investigating officers
to thereby provoke the appellant to respond, most likely
to his own detriment. However, at no time had they pro-
vided appellant therein with his Miranda warnings. In
condemning this technique of indirect interrogation, the
Court emphasized the lack of warnings and the clear in-
tent of the police to evoke inculpatory statements.

Similarly, in Commonwealth v. Bordner, supra, the
police used the parents of the accused, whom they had
prompted to ask a variety of questions, in order to get a
confession from the accused. After looking at the totality
of the circumstances,* the Court concluded:

6. This is the : en standard under Commonwealth v.
Eperjesi, supra note 5.

Al2 Appendix I

“The circumstances reveal a plan on the part of police
authorities to use the [parents] as a police instru-
mentality in the interrogation of the accused son and
the statements made to the [parents] in the context of
this factual setting, are as though made to the police
themselves.”

In the instant case, the circumstances compel no such
conclusion of a plan to use Santos as the instrument for
procuring a~ confession from Richard. At all times, the
troopers had been careful to respect appellants’ constitu-
tional rights. In light of Santos’ already overwhelming
implication in the crime, and the light-hearted, if not
cavalier, attitude of appellants, the trooper’s question con-
cerning the origin of the marijuana appears innocuous—
certainly, it could not have been expected or calculated to
produce Richard’s unresponsive admission of ownership.

The situation in the instant case more closely parallels
several federal cases wherein one suspect has made an un-
solicited response to a question asked of another suspect in
his presence. In these situations, “the general view is that
such a response is not the product of ‘interrogation,’ but a
‘volunteered’ statement.” Y. Kamisar, W. La Fave & J.
Israel, Modern Criminal Procedure 584 (4th ed. 1974).
Thus, the federal courts have held that suspects who re-
spond to questions asked of third persons, prior to receiv-
ing Miranda warnings and presumably while unaware of
their constitutional rights, have not been interrogated, but
rather have volunteered those statements. See Haire v.
Sarver, 437 F. 2d 1262 (8th Cir. 1971) (husband responded
to question asked of wife); Stone v. United States, 385
F. 2d 713 (10th Cir. 1967) (driver responded to question
asked of passenger). The instant case is stronger than the
federal cases insofar as the appellants had been apprised
of their constitutional rights on several occasions, including

Appendix I A13

the fact that they need not speak and that anything they
said could be used against them.

In light of all the facts and circumstances, we find that
Richard’s admission of ownership was volunteered and,
therefore, properly admitted into evidence against him.

Accordingly, the judgments of sentence are affirmed.

Jacoss, J., concurs in result.
HorrMaN, J., files a dissenting opinion, at No. 984.

Spaeth, J., files a concurring opinion.

Al4 Appendix I

IN THE
SUPERIOR COURT OF PENNSYLVANIA
PHILADELPHIA DISTRICT.

No. 983 Ocroser TerRM, 1974.

No. 984 OcroBer TERM, 1974.

COMMONWEALTH OF PENNSYLVANIA
v.

PAUL RICHARD a/k/a RICHARD ANTHONY HARRIS
AND THEODORE JAMES SANTOS, JR., APPELLANTS

No. 983—APPEAL OF THEODORE JAMES SANTOS, JR.
No. 984—AppEAL OF Pau RICHARD a/k/a
RICHARD ANTHONY Harris.

APPEAL FROM THE JUDGMENTS OF SENTENCES IMPOSED
Apri 16, 1974, spy THE Count of CoMMON PLEAS
CRIMINAL, OF CUMBERLAND County AT No. 252
DECEMBER TERM, 1972.

CONCURRING OPINION BY SPAETH, J.: FiLeD Marcu 31, 1975.

The difficulty with this case, as I see it, is not in the
law but the facts. Judge HorrmMan’s opinion states that
“Seiler further warned the appellants that if consent were
not given, the troopers would lock the vehicle and swear
out a warrant before the district magistrate. Thereafter,
the appellants signed a statement of consent prepared by

Appendix I Ald

Geary.” However, as Judge Crercone’s opinion notes,
“Both troopers disagreed that they had so phrased their
advice and explained why they did not—they were aware
that representations of the availability of a search warrant
could be construed to be coercive and thereby vitiate the
consent. The question, therefore, was one of credibility
properly left for resolution by the hearing court below.”

Plainly, the hearing judge might have found that ap-
pellants had not voluntarily consented to a warrantless
search. Not only might the judge have believed that the
troopers had threatened to lock the vehicle; he might also
have placed some emphasis, as Judge HorrMan does, on
the facts that when approaching the vehicle, the troopers
were armed, and used their weapons to keep appellants
covered.

Nevertheless, we cannot reverse a hearing judge's
findings except for abuse of discretion, Commonwealth v.
Knowles, 440 Pa. 84, 269 A. 2d 739 (1970), and when the
entire record is considered, I think it fair to say there was
no such abuse. Accepting the troopers’ testimony, it ap-
pears that appellants were specifically told they did not
have to consent. Further, the troopers took the unusual
precaution of obtaining appellants’ written consent. And
finally, the manner in which appellants conducted them-
selves manifests a hard-boiled bravado, which, on balance,
persuades me that although most persons would have
found the circumstances too threatening to permit of vol-
untary consent, appellants did not.

Al6 Appendix I

IN THE
SUPERIOR COURT OF PENNSYLVANIA.

No. 984 Ocroser TERM, 1974.

COMMONWEALTH OF PENNSYLVANIA
v.

PAUL RICHARD, A/K/A RICHARD ANTHONY
HARRIS anp THEODORE JAMES SATOS, JR.

APPEAL OF PAUL RICHARD,
a/k/a Ricuarp ANTHONY Harris

APPEAL FROM THE JUDGMENT OF SENTENCE IMPOSED BY
THE Court oF ComMMoON PLEAS oF CUMBERLAND
County, To No. 252 DeceMBER TERM, 1972,
CRIMINAL Division.

DISSENTING OPINION BY HOFFMAN, J.:
Fitep Marcu 31, 1975.

The issue before the Court is whether the appellants’
consent to a police search vitiated the illegality of the
arrest.

On November 16, 1972, appellants, Paul Richard
(a/k/a Richard Anthony Harris) and Theodore James
Santos, Jr. were travelling east on the Pennsylvania Turn-
pike. They were riding in a 1966 International Travel
All owned by Santos which was registered in California.
At about 1:30 p.m. the police broadcast a description of
the vehicle and of the appellants and the belief that the
vehicle contained a large quantity of marijuana. The

Appendix I Al7

vehicle was spotted by State Trooper Max Seiler, who re-
quested assistance for the purpose of stopping the vehicle.
He was joined by Trooper Robert Geary in a separate
cruiser. The appellants complied with the Troopers’ in-
structions to pull off the highway. On alighting from their
vehicles, Geary armed himself with a 30 caliber carbine
and Seiler with a 12 guage pump shotgun. Geary kept
the appellants covered while they were ordered to “spread
eagle”; Seiler conducted a body search to assure himself
that the two suspects were not armed.

Seiler went back to his cruiser to conduct a license
and owner’s card check on the appellants. Geary read
them their “Miranda” warnings from the standard police
form. The appellants stated that they understood their
rights. After the warnings were given, Geary asked them
for written permission to search the International Travel
All. Seiler rejoined them after the license check proved
negative. Seiler further warned the appellants that if
consent were not given, the troopers would lock the vehicle
and swear out a warrant before the district magistrate.
Thereafter, the appellants signed a statement of consent
prepared by Geary.

The search which followed the execution of the con-
sent form revealed over two hundred pounds of marijuana.
Following the discovery of the marijuana, the appellants
were taken to the State Police Barracks. At the barracks,
the appellants signed forms indicating that they wanted
to consult with an attorney. Thereafter, on the way to
the district magistrate’s office, the police officers engaged
appellants in what the officers described as an “informal,
inquisitive type conversation” that led to an incriminating
statement by appellant Richard.

In January of 1973, appellants were indicted on one
count of Unlawful Possession with Intent to Deliver a

A18 Appendix I

Schedule I Controlled Substance. Appellants moved to
suppress the physical evidence and the statement made
by appellant Richard. The motions were denied after a
hearing on February 26, 1973. Subsequently, appellants
waived a trial by jury and were tried before the court on
February 28, 1973. A finding of guilt was handed down
on May 21, 1973. In January of 1974, appellants’ motions
in Arrest of Judgment and for a New Trial were denied.
On April 16, 1974, appellant Richard was sentenced to
two to five years imprisonment and appellant Santos was
sentenced to one to three years imprisonment.

In a recent United States Supreme Court case, Mr.
Justice Stewart stated the law governing warrantless
searches: “It is well settled under the Fourth and Four-
teenth Amendments that a search conducted without a
warrant issued upon probable cause is ‘per se unreasonable

. —subject only to a few specifically established and
well-delineated exceptions.’ [citations omitted]. It is
equally well settled that one of the specifically established
exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to
consent... . ” Schneckloth v. Bustamonte, * a

, 93 S. Ct. 2041, 2043-44 (1973).

Another exception to the otherwise strict warrant re-
quirement is that a warrantless search may be made inci-
dent to a lawful arrest. Adams v. Williams, . Se
92 S. Ct. 1921 (1972) citing as authority Brinegar v. United
States, 338 U. S. 160 (1949) and Carroll v. United States,
267 U. S. 132 (1925). The arrest must, however, be based
on probable cause; absent probable cause to arrest, the
arrest is illegal and the evidence seized in the incident
search must be suppressed as “fruit of the poisonous tree.”
Wong Sun v. United States, 371 U. S. 471 (1963); Com-
monwealth v. Mackie, Pa. , 320 A. 2d 842 (1974).

Appendix I Al19

In the instant case, the Commonwealth does not con-
tend that the officers had probable cause to stop the vehicle
and concedes that the radio alert was based on insufficient
probable cause: “The Commonwealth here does not rely on
the radio bulletin to establish probable cause as it does not
rely on justifying the search as incident to a lawful arrest,
but merely asserts that the bulletin justified the initial stop-
ping of the vehicle.”

The Commonwealth attempts to justify the warrant-
less search on the grounds that the appellants freely con-
sented to the search. The Commonwealth suggests that
the stop of the appellants’ vehicle was legal; that the initial
patdown of the appellants was justified, (see Terry v. Ohio,
392 U. S. 1 [1968]); that thereafter, a voluntary consent
to search the vehicle was made. Inherent in the Common-
wealth’s argument are at least two assumptions. First,
after the patdown but before the consent was granted, the
appellants were not under arrest. Second, even if under
arrest whether legal or illegal, the appellants could none-
theless effectively consent to the search.

The Commonwealth’s argument flies in the face of the
recent Pennsylvania Supreme Court decision in Common-
wealth v. Swanger, Pa. , 300A. 2d 66 (1973), aff'd
on rehearing, 453 Pa. 107, 111, 307 A. 2d 875 (1973):
“when a police officer stops a vehicle he has ‘seized’ the
vehicle and its occupants, and thus, protections of the
Fourth Amendment must be considered.” The police in
the present case observed no violation of The Vehicle
Code of Pennsylvania,’ and the Commonwealth presents
no argument that there was probable cause for the stop of
the vehicle. Hence, the stop of the vehicle without a
violation of the Code and without probable cause was an
arrest without legal justification. Further, once the police
had stopped the appellants and had conducted the initial

1. 1959, April 29, P. L. 58, § 101; 75 P. S. § 101 et seq.

A20 Appendix I

patdown,” there is no question that the appellants were
under arrest. In fact, the police told appellants that they
could either consent to the search or the officers would
lock up the vehicle on the side of the road and take the
appellants before a district magistrate. That is, the officers
themselves made clear that the appellants were being re-
strained. (Cf. Henry v. United States, 361 U. S. 98, 103
(1959): “When the officers interrupted the two men and
restricted their liberty of movement, the arrest, for pur-
poses of this particular case, was complete.”) Hence, be-
fore probable cause was shown, appellants were under
arrest.

Once the appellants were under arrest, the subsequent
“consent” was tainted by prior police illegality: the police
told appellants that they had a valid basis for the arrest
when in fact, they did not; therefore, appellants merely
acquiesced in that show of force which they assumed was
lawful. They did not voluntarily consent. Bumper v.
North Carolina, 391 U. S. 543 (1968). In addition, Wong
Sun, supra, dictates that the statement made by appellant
Richard must also be suppressed because it was the fruit
of the illegal arrest.

Finally, even if the consent to the search supplied the
justification for the search of the vehicle, the appellants
did not thereby also consent to the illegal arrest. Assum-
ing a knowing and intelligent waiver of the right to be free
from an unreasonable search, the Court cannot infer from
that waiver an additional waiver of the right to be free
from illegal arrest. Indeed, this Court must be mindful

2. Appellee points to Adams v. Williams, 407 U. S. 143 7
as oman ing. In Adams, the police officer had a reasonable sus-
picion of criminal activity to justify a “Terry” patdown. See Terry
v. Ohio, supra. The patdown revealed a weapon which justified
further search incident to a lawful arrest. In the instant case, the
patdown, even if legal, revealed nothing. The subsequent deten-
tion of appellants, therefore, was not justified.

Appendix I A21

that “ ‘courts [must] indulge every reasonable presumption
against waiver’ of fundamental constitutional rights.”
Johnson v. Zerbst, 304 U. S. 458, 464 (1938) [footnote
omitted].

Therefore, the judgment of sentence should be re-
versed and a new trial granted.

A22 Appendix II
APPENDIX II.

COM. v. SANTOS and RICHARD, C. P., CRIMINAL
No. 252 Dec. Term 1972. p

Epcar B. Bay.ey, Jr., Esquire, Assistant District Attorney

\

RicHARD C. SNELBAKER, Esquire, and
James M. Moran, Esquire, for Defendants

Re: Motions IN ARREST OF JUDGMENT AND FOR NEW TRIAL
Before SHucHaRT, P. J., and WEIDNER, J.

WEIDNER, J., January 10, 1974:—

On November 16, 1972, Troopers Max Seiler and
Robert Geary of the Pennsylvania State Police stopped a
vehicle driven by the defendant Theodore James Santos,
Jr. Defendant Paul Richard was a passenger in the vehicle.
Acting on information previously received by radio from
Pennsylvania State Police Communication Center at High-
spire, Pennsylvania, Trooper Seiler believed that the de-
fendants were transporting narcotics. With the assistance
of Trooper Geary, Trooper Seiler conducted an investiga-
tion which ultimately led to the seizure of a large quantity
of marijuana from the tire-well compartment of the vehicle
and from certain items of luggage which were located in
the vehicle. The defendants were then arrested and a
criminal complaint was filed.

A preliminary hearing was held on November 22, 1972,
at which the two defendants were charged with unlawful
possession with the intent to deliver a controlled substance,
to wit, marijuana. A prima facie case was established and
the defendants were bound over to the court and subse-
quently indicted by a grand jury. The defendants filed
timely motions to suppress all evidence and hearings on

een a ee

Appendix II A23

these motions were held on February 8, 1973. By order
of the court on February 26, 1973, defendants’ motion to
suppress evidence was overruled and dismissed.

The defendants waived a jury trial and were tried
before the writer on February 28, 1973. Both defendants
were found guilty as charged. The defendants then filed a
post-trial motions for new trial and in arrest of judgment,
asserting that (1) the Commonwealth’s evidence was in-
sufficient as a matter of law to establish defendants’ alleged
possession of a controlled substance with intent to deliver,
(2) this court erred in admitting evidence obtained as a
result of an unlawful apprehension, search, and seizure of
the defendants and their vehicle; and (3) the statements
made while enroute to the district justice’s office and at
the prison were not admissible. Additionally, defendant
Santos contends that the Commonwealth has the burden
of proving, beyond a reasonable doubt, that he is not
among the class of persons privileged to possess and de-
liver controlled substances. We will address this conten-
tion forthwith.

This argument is apparently premised on an analysis
of the statute which the defendant is charged with violat-
ing. Defendant is charged with a violation of § 13(a) (30)
of the Controlled Substance, Drug, Device and Cosmetic
Act of 1972, (hereinafter, “the Act”) No. 64, P. L. —, 35
P. S. 780-113(a)30, in that he:

did unlawfully, knowingly or intentionally possess with
the intent to deliver a controlled substance, to wit:
marijuana, a Schedule I substance, not then and there
being registered or licensed as required by the act of
the Assembly of the Commonwealti: of Pennsylvania.

Section B(a) (30) of the Act prohibits:

Except as authorized by this act, the manufacture, de-
livery, or possession with inteni to manufacture or

A24 Appendix II

deliver, a controlled substance by a person not regis-
tered under this act, or a practitioner not registered
or liceused by the appropriate State Board. . .

Section 21 of the Act provides:

In any prosecution under this act, it shall not be neces-
sary to negate any of the exemptions or exceptions of
this act in any complaint, information or trial. The
burden of proof of such exemption shall be upon the
person claiming it (Emphasis added).

It is abundantly clear from a reading of Section 21 that no
burden rested upon Commonwealth to prove that Defend-
ants were not exempt under the act but that it was 1 mat-
ter that should have been raised by the defense.

We will not summarize the evidence presented at
trial to determine whether that evidence is sufficient to
support the convictions. It must be remembered that the
Commonwealth is to be given the benefit of all favorable
testimony and all reasonable inferences arising therefrom.
Commonwealth v. Portalatin, 223 Pa. Superior Ct. 33
(1972).

On November 16, 1972, Trooper Max Seiler of the
Pennsylvania State Police received a radio broadcast alert
to the effect that a white International Travelall, California
registration SZH992, with two white male occupants, had
entered the Pennsylvania Turnpike. The alert indicated
that the vehicle was carrying a large quantity of marijuana.
Trooper Seiler sighted a vehicle fitting this description and
with the assistance of Trooper Robert E. Geary, Pennsyl-
vania State Police, stopped it along the highway. A pat-
down search of the occupants, held at gun point by Trooper
Geary, was conducted by Trooper Seiler. Satisfied that the
defendants had no weapons on their persons, both officers

:

Appendix II A25

immediately returned the firearms to their vehicles. From
the operator licenses and the vehicle registration obtained,
the occupants were identified as Paul Richard, the passen-
ger, and Theodore James Santos, Jr., the driver, the de-
fendants in this action.

At this time both defendants were advised of their
Miranda rights. Defendants then asked the troopers why
they had been stopped. In response the troopers explained
that they had reasonable cause to believe that the defend-
ants were transporting a large quantity of ‘marijuana.
Miranda warnings were again given to the defendants.
They indicated an unequivocal understanding of these
rights.

The troopers then explained to the defendants that
they (the police) did not have the right to search the car.
They further explained that a search could only be con-
ducted in either one of two ways. The troopers stated that
the first way to search the vehicle would be by obtaining a
search warrant from a district magistrate. Under this pro-
cedure the troopers must swear out a complaint for a
search warrant stating probable cause to believe contra-
band was in the vehicle. The district magistrate would
only issue a search warrant if it was determined that the
complaint in fact stated sufficient probable cause to believe
the marijuana was present in the carry-all van. The
troopers stated that the second way to search the vehicle
would be with the consent of the defendants. At no time
up until this point did the troopers threaten to arrest the
defendants, to impound their vehicle, or to obtain a search
warrant. In addition, it was further stated that the de-
fendants had an absolute right to refuse to permit the
search. Defendants then agreed to allow the police to
search the vehicle and signed a form indicating that their
consent was freely given.

A26 Appendix II

With the assistance of defendant Santos, the troopers
searched the carry-all van. Defendant Santos voluntarily
opened several suitcases by working combination locks.
This search revealed a large quantity of a substance the
troopers believed to be marijuana. Defendants were then
arrested, handcuffed and transported to the police bar-
racks.

At the police barracks the troopers again searched the
carry-all van, seizing another large quantity of a substance
believed to be marijuana. The marijuana had been
secreted in the spare tire compartment. The defendants
then signed a form indicating that they did not wish to
make any further statements and that they wished to see
attorneys.

The troopers then transported the defendants to the
district magistrate’s office to make formal charges. While
enroute, Trooper Seiler initiated a conversation with
Trooper Geary regarding a program which had appeared
on television concerning illegal drug traffic. During the
course of their conversation defendant Richard voluntarily
stated that the marijuana belonged to him and not to de-
fendant Santos. Subsequently, at the county prison, de-
fendant Santos stated that he was assisting defendant
Richard in transporting the marijuana from California to
the east for a fee of one thousand dollars.

The seized substances, aggregating approximately 225
pounds, were presented to the police crime laboratory. An
analysis conducted there confirmed Troopers Seiler and
Geary’s suspicions that the substances were marijuana.

I. SUFFICIENCY OF THE EVIDENCE.
In determining whether the Commonwealth's evi-

dence is sufficient to establish possession of a controlled -

substance with the intent to deliver as to both defendants,
it is important to establish the standard of proof necessary

~~. «

A ne ee ee ee

| a

Apnendix II A27

to support a conviction of this nature. Our courts have
followed the definition of “possession” as “power of con-
trol and intent to control” as set forth in United States v.
Curzio, 170 F. 2d 354 (3rd Cir. 1948), for cases of both
illegal firearms and narcotics. Under this rule it is neces-
sary to prove that the person charged with possession of
an illegal object knew the object was in his possession.
Commonwealth v. Armstead, 452 Pa. 49 (1973).

It was acknowledged by this court in Commonwealth
v. Jackson and Garrett, 24 Cumb. L. Jrl. 59, 285 Sept.
Term, 1972, that the difficulty with the Pennsylvania rule
is that there is an apparent lack of any judicial definition
of “power to control” or “intent to control” regarding
narcotics possession. After a discussion of the viable al-
ternatives, it was concluded that a broader definition,
which would construe these terms to mean merely the
ability to exert an influence over the object as opposed to
the ability to reduce the object to actual physical control,
was the proper guideline for the determination of narcotics
possession. Accordingly, we must view the instant case
in light of this analysis.

The search of the car in which defendant Santos, the
owner, was driving and defendant Richard was a pas-
senger revealed approximately 225 pounds of marijuana.
The marijuana was secreted in several suitcases owned by
defendant Santos and located in the rear section of the
carry-all van and in the spare tire compartment which was
also located in this rear section. The factual situation
presented here is similar to that found in Commonwealth
v. Jackson and Garrett, supra. In that case a search of
the vehicle in which the defendants were riding, one as
the driver and the other as a passenger, produced approxi-
mately 15 pounds of heroin. The vehicle involved was a
sedan-type and the narcotics were located in the trunk.
Access to the trunk was gained through the rear seat, as

A28 Appendix II

the defendants claimed the car was borrowed and they
did not know the whereabouts of the trunk-key. In ap-
plying the above-mentioned interpretation of the posses-
sion rule, the court held that the defendants knew that
the narcotics were present and that they intended to trans-
port them. It is interesting to note that there was no
conclusive showing that either of the defendants actually
owned area inaccessible to the defendants, were in a posi-
tion where the defendants inaccessible to the defendants,
were in a position where the defendants could readily have
exerted an influence over them. In addition, the lack of
any physical barrier in the vehicle between the defendants
and the marijuana indicates an ability to reduce the con-
traband to actual physical control. This conclusion is il-
lustrated by the relative ease with which defendant Santos
removed the suitcases containing the marijuana from the
rear section of the carry-all van. In light of the decision
in Commonwealth v. Jackson and Garrett, supra, we are
compelled to hold that the defendants, in the case at bar,
knowingly intended to transport the narcotics.

The conclusion that the instant case involves more
than the mere presence of the defendants in a vehicle
carrying contraband is also highlighted by the facts of the
case. The vehicle in question, the carry-all van, belonged
to defendant Santos. Defendant Santos took an active part
in revealing the presence of the marijuana to Troopers
Seiler and Geary. In particular, he opened several suit-
cases containing narcotics by working combination locks.
Defendant Santos also stated that these items of luggage
belonged to him. In addition, defendant Santos stated
that defendant Richard had offered to pay him one thou-
sand dollars to transport the marijuana and that he had
agreed. Defendant Richard, on the other hand, admitted
that the marijuana belonged to him in an unsolicited com-
ment to Trooper Geary.

,

Appendix II A29

In Commonwealth v. Jackson and Garrett, supra, the
court also discussed the issue of intent to deliver a con-
trolled substance and concluded that “(t)he very great
amount of the drug supports a conclusion that it was in-
tended for sale and not for personal use.” Because of the
exceptionally large amount of marijuana that was revealed
as a result of the search of the vehicle in the instant case,
we are likewise compelled to hold that the narcotics were
intended for sale and not for personal consumption.

It is the view of this court that the evidence in this
case is of ample quantity and quality to justify a finding of
guilt beyond a reasonable doubt as to both defendants.
Accordingly, defendants’ motion in arrest of judgment is
denied.

II. ADMISSION OF EVIDENCE OBTAINED AS A
RESULT OF THE APPREHENSION, SEARCH,
AND SEIZURE OF THE DEFENDANTS
AND THEIR VEHICLE.

Defendants contend that this court erred in admitting
evidence obtained as a result of an unlawful apprehension,
search, and seizure of the defendants in the automobile
driven by defendant Santos. On determining the validity
of this contention, we must examine the entire chain of
events that transpired between the troopers and the de-
fendants.

The first question is whether the defendants’ vehicle
was lawfully forced to a stop by the troopers. The recent
case of Commonwealth v. Swanger, 453 Pa. 107 (1973),
holds in effect that if a police officer stops a vehicle and
restrains the freedom of the operator to leave, he has seized
the vehicle unlawfully unless the police can point to spe-
cific and articulable facts which would reasonably have
led them to believe a crime was being committed. This

A30 Appendix II

decision has rendered illegal the former police practice of
spot-checking single vehicles on our highways.

Police are however, permitted to legally stop a person
and question him while conducting an investigation; but
the police may not restrain the individual or search his
clothing unless they have probable cause to arrest that
person or have observed conduct otherwise justifying a
stop and frisk. Commonwealth v. Berrios, 437 Pa. 338
(1970); Commonwealth v. Hicks, 434 Pa. 153 (1969).
Therefore, in the present case the troopers were acting
lawfully when they stopped the defendants’ vehicle to
conduct an investigation of the information they had re-
ceived over the police radio.

Moreover, the cases of Commonwealth v. Berrios,
supra, and Commonwealth v. Hicks, supra, were decided
under the standards set forth in Terry v. Ohio, 392 U. S. 1,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The United
States Supreme Court has recently clarified th iaw in re-
gard to investigatory stops in Adams v. Williams, 407 U. S.
143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), where the
court stated at 407 U. S. 143, 145:

In Terry this Court recognized that a “police officer
may in appropriate circumstances and in an appro-
priate manner approach a person for the purpose of
investigating possible criminal behavior even though
there is no probable cause to make an arrest.” (Cita-
tions omitted). The Fourth Amendment does not
require a policeman who lacks the precise level of in-
formation necessary for probable cause to arrest to
simply shrug his shoulders and allow a crime to occur
or a criminal to escape. On the contrary, Terry recog-
nizes that it may be the essence of good police work
to adopt an immediate response... . A brief stop
of a suspicious individual in order to maintain the

tip sve eee

Appendix II A31

status quo momentarily while obtaining more infor-
mation may be most reasonable in light of the facts
known to the officer at the time. (Citations omitted).

In the Adams case the police officer stopped the suspect in
response to a tip from a reliable informant that the suspect
was armed and possessed narcotics. The Supreme Court
held that under the circumstances the detention and search
of the suspect was lawful and allowed the fruits of that
search to be admitted as evidence. In the instant case
Trooper Seiler received his information from police head-
quarters, which we consider to be as reliable as informa-
tion received from an informant. Trooper Seiler would
have been derelict in his duty had he not stopped the
vehicle, at least for the purpose of “maintaining the status
quo momentarily” in order to obtain more information
either from police headquarters or from the defendants to
enable him to obtain probable cause to arrest the suspects.
This situation is distinguishable from Swanger, supra,
where the defendant’s vehicle was stopped routinely, and
not in the course of an investigation; and where the burglar
tools were seized during the illegal “search” of the defend-
ant’s driver's license and vehicle registration.

In the present case, however, the police frisked the
defendants at gun point and conducted a search of their
driver's licenses and vehicle registration. Under the stand-
ards set forth in Hicks and Berrios, the search of the
driver's licenses and vehicle registration was unlawful.
Neither of these searches, however, produced any infor-
mation which in any conceivable way led to the subse-
quent seizure of the marijuana. Thus if the subsequent
search of the vehicle was legal and not based upon infor-
mation obtained in the illegal seizure of the defendants’
persons the evidence world be admissible. Common-
wealth v. Nicholls, 207 Pa. Super. Ct. 410 (1966).

A32 Appendix II

Yet, there is another problem. The Pennsylvania
Supreme Court stated in Commor. vealth v. Bosurgi, 411
Pa. 56, 68 (1963) that

(a)rrest may be accomplished by “any act that indi-
cates an intention to take (a person) into custody and
that subjects him to the actual control and will of
the person making the arrest.” 5 Am. Jr. 2d Arrest,
§ 1, p. 695.

The Court later refined this concept by stating that custody
occurs when the suspect, as a reasonable person, believes
that his freedom of action or movement is restricted by an
interrogation. Commonwealth v. Marabel, 445 Pa. 435,
441-442 (1971). There can be no doubt that the two
suspects in this case were under arrest when the troopers
frisked them. Our courts have held repeatedly, however,
that a confession made subsequent to an illegal custodial
interrogation might still be admissible if lawfully obtained
“by means sufficiently distinguishable to be purged of the
primary taint.” Commonwealth v. Fogan, 449 Pa. 552
(1972). In that case a suspect was illegally interrogated
and then kept illegally at the police station. While the
suspect was at the station other information was revealed
which incriminated him, and he was again questioned,
this time properly. The confession made by the defendant
was held admissible. We see no reason why the same
rule should not apply to consensual searches. See gen-
erally Commonwealth v. Burgos, 223 Pa. Super. Ct. 325,
332 (1972). If the suspect is illegally arrested, then he
presumably could not lawfully consent to a search of his
person or property. However, the fact that an illegal
arrest or search has been made should not vitiate a subse-
quent consensual search which is lawfully conducted if
the totality of the circumstances demonstrates that the
original taint has dissipated. See Commonwealth v.

Fogan, supra.

te ome cx

lteter rr

Appendix II A33

Where a warrantless search is made pursuant to a
consent, the consent must be shown to have been given
unequivocally, specifically, freely, and intelligently. Com-
monweath v. Mamon, 449 Pa. 249, 255 (1972). To sus-
tain a consent, the entire set of surrounding circumstances
must be examined, and a total absence of coercion, either
express or implied, must be shown. Commonwealth v.
Mamon, supra; Commonwealth v. Harris, 429 Pa. 215, 221
(1968).

In determining whether a consent was voluntary, the
court must look to the entire set of surrounding circum-
stances, including what was said and done by the parties
present, and the consenting party’s age, intelligence, and
educational background. Commonwealth v. Burgos, 223
Pa. Super. Ct. 325, 331 (1972). Accordingly, it is argued
that defendants’ consent was not voluntary because (1) the
defendants were removed from their vehicle and frisked
at gunpoint, and (2) the defendants were told that the
reasonable cause necessary to obtain a search warrant was
already possessed by the officers. The argument, however.
is without merit, for it is oblivious to the holding of the
Pennsylvania Superior Court in Commonwealth v. Burgos,
supra, where it is clear that coercion depends not only
upon what was done by the troopers, but also upon the
effect the troopers’ actions had upon the consenting party.

The troopers here returned their firearms to their po-
lice cruisers once they were unarmed. Subsequently, the
troopers twice administered the Miranda warnings and
asked the defendants if they understood them. Likewise,
it was explained to the defendants several times that the
consent form need not be signed.

It is also significant that before the defendants would
indicate that they understood their Miranda rights, they
demanded to know why they had been stopped. While
such a demand was reasonable, it also preponderates

A34 Appendix II

against a conclusion that the defendants were submissive
to the troopers’ suggestions. To the same effect is the de-
fendants’ willingness to sign the consent form—a willing-
ness which was not to be deterred by repeated warnings
that the form need not be signed—and their actual signa-
ture of that form. Although it is argued that consent to
the inevitable cannot be free of coercion, Bumper v. North
Carolina, 391 U. S. 543, 550, 88 S. Ct. 1788, 1792, 20 L. Ed.
2d 797, 803 (1968), it is clear that the instant case is
within the distinction to that rule, that irrespective of ap-
parent inevitability, a consent can be voluntarily given if
there is evidence of knowledge that a right is surrendered,
of which the consenting party is fully apprised. Com-
monwealth v. Marmon, 449 Pa. 249, 254 (1972). Finally,
it should also be noted that defendant Santos actively as-
sisted in the search of the vehicle. Affirmative assistance
in a warrantless search implies a consent voluntarily given.
United States ex rel. Anderson v. Rupple, 274 F. Supp.
364, 371 (E. D. Pa. 1967); aff. 393 F. 2d 635 (3d Cir.
1968 ).

The entire sequence of events clearly demonstrates
that the defendants were fully informed of their rights to
require a search warrant, and at liberty to exercise their
right without interference. This court holds that the con-
sent was freely and intelligently given, and is, therefore,
valid. The defendant Santos even told the trooper that
after this search he would make sergeant.

Ill. STATEMENTS MADE WHILE ENROUTE TO
THE DISTRICT MAGISTRATE’S OFFICE AND
AT THE PRISON.

It is further argued that the statements made by de-
fendant Richard that the marijuana belonged to him, and
by defendant Santos, that defendant Richard had hired

ee en eae Ee Ee

Appendix II A35

him to transport the marijuana, were lawfully elicited after
defendants had indicated that they wished to remain silent
and to have the assistance of counsel. A careful exami-
nation of the transcripts from the trial and suppression
hearing discloses, however, that defendants were informed
of their Miranda rights and indicated an unequivocal
understanding of them. Moreover, there is nothing to
suggest that the defendants were plagued by any defect
of age, intelligence or education. Absent these factors it
would be unreasonable to conclude that the defendants
did not understand the nature of their utterances. Ac-
cordingly, Troopers Geary and Seiler were under no obli-
gation to again administer Miranda warnings to the de-
fendants. See Commonwealth v. Youngblood, 453 Pa. 225
(1973).

The statements were given voluntarily and intelli-
gently, free from the blemish of compelling influence.
They are not unlike the statements made in Common-
wealth v. DuVal, 453 Pa. 205 (1973) where the defendant
blurted out a confession as he underwent routine process-
ing by a prison official subsequent to arraignment. It was
there held that the spontaneous confession was admissible
even though made after the Miranda warnings had been
administered and after the defendant had indicated that
he did not wish to undergo interrogation. The court
reasoned that the questioning associated with routine
prison processing was not intended to nor was it likely to
elicit a confession. Likewise, in the case at bar defendant
Santos’ spontaneous statement was made in the course of
routine prison processing. It is clear that such statements
are admissible in evidence even when made after the de-
fendant indicates that he desires to stand on his Miranda
rights. Commonwealth v. DuVal, supra.

A36 Appendix II

ORDER OF COURT.

Anp Now, January 10, 1974, for the reasons set forth
above, the motions in arrest of judgment and for a new
trial filed on behalf of Theodore Santos and Paul Richard
are overruled and dismissed.

Defendants are ordered and directed to appear for
sentence on receipt by the court of a presentence investi-
gation report.

Appendix III A37

APPENDIX III.

IN THE
UNITED STATES DISTRICT COURT

For THE Mipp.e District or PENNSYLVANIA

Civit No. 75-943

IN THE MATTER OF THE APPLICATION OF
THEODORE JAMES SANTOS, JR.

v.

EDGAR B. BAYLEY, Assistant District ATTORNEY,
CUMBERLAND County, Pa.

Crvu. No. 75-994

IN THE MATTER OF THE APPLICATION OF

PAUL RICHARD, a/k/a
RICHARD ANTHONY HARRIS

v.

EDGAR B. BAYLEY, Assistant District ATTORNEY,
CUMBERLAND Country, Pa.

MEMORANDUM AND ORDER.

This case is before the court on petitioners’ applica-
tions for writs of habeas corpus. Petitioners Theodore
James Santos, Jr. and Paul Richard, a/k/a Richard Anthony
Harris, were tried together and ultimately convicted of un-

A38 Appendix III

lawful possession with intent to deliver a Schedule I con-
trolled substance; to wit, 225 pounds of marijuana, in
violation of Section 13(a) (3) of the Controlled Substance,
Drug Device and Cosmetic Act of 1972, No. 64, P. L. —,
35 P. S. 780.113(a)(3), before Judge Weidner in the Court
of Common Pleas of Cumberland County, Pennsylvania.
They made a timely but unsuccessful motion for suppres-
sion of evidence. A finding of guilt was made on May 21,
1973, and Santos was sentenced to a term of imprisonment
of not less than one nor more than three years, while Harris
was sentenced to imprisonment of two to five years. Peti-
tioners’ motions in arrest of judgment and for a new trial
were denied, and on appeal the Superior Court of Penn-
sylvania affirmed the conviction. Allocatur was denied by
the Pennsylvania Supreme Court in a per curiam order
entered on July 14, 1975. Thereafter, they filed a petition
in this court for habeas corpus.

The facts are these: On November 16, 1972, defend-
ant Santos and his companion defendant Richard, were
travelling east on the Pennsylvania Turnpike in a 1966
International Travelall van owned by defendant Santos,
and registered in the State of California. State Trooper
Max Seiler, in a patrol car, sighted the van heading east
and followed the vehicle, while awaiting the arrival of
assistance, in response to a radio broadcast from the State
Police Communications Center at Highspire to the effect
that a white International Travelall, California registration
SZH 992, with two white male occupants, had entered the
Turnpike at Breezewood carrying a large quantity of
marijuana at approximately 1:30 P. M. Trooper Robert
Geary appeared on the scene, and with one patrol car in
front of the van and one patrol car in the rear, the troopers
signalled the driver of the van, defendant Santos, to pull
over. The troopers then emerged from their patrol cars,
armed with a .30 calibre carbine and a .12 guage pump

IIa ina a

Appendix III A39

shotgun, and instructed the occupants of the van to get out
and “spreadeagle” against the van. Trooper Seiler con-
ducted a patdown search while Trooper Geary covered
the defendants with his carbine. When the patdown
search revealed that the defendants were unarmed the
troopers returned their weapons to their cars.

While Trooper Seiler conducted a radio check on de-
fendant Santos’ vehicle registration and the drivers’ licenses
of both defendants, Trooper Geary gave the defendants
their Miranda warnings. and ascertained that they under-
stood their rights. When questioned by the defendants
as to why they were stopped, Trooper Geary informed
them that the police had reason to believe that they were
transporting a large quantity of marijuana. He then asked
defendants if they would permit the troopers to search
their van, advising them as follows:

“I want you to keep this in mind, that if you give
me permission and if we would find anything in the
vehicle it would be used against you. I want you to
understand this. . . . You do not have to give me
permission to search the vehicle.”

When Trooper Seiler returned to the van (there were
no irregularities in appellants’ registration or licenses ), he
administered the Miranda warnings a second time and
ascertained that they were understood. When asked again
by the defendants why they had been stopped, the troopers
explained that they had reasonable cause to believe that
the defendants were transporting a large quantity of
marijuana.

The troopers then explained to the defendants that
they (the police) did not have the right to search the car.
Trooper Seiler further explained t!iat a search could only
be conducted in one of two ways. He stated that the first
way to search the vehicle would be by obtaining a search

A40 Appendix III

warrant from a district magistrate; that under this pro-
cedure the troopers would be required to swear out a com-
plaint for a search warrant stating probable cause to be-
lieve contraband was in the vehicle. It was further stated
to the defendants that the district magistrate would only
issue a search warrant if he determined that the complaint
in fact stated sufficient probable cause to believe the mari-
juana was present in the Travelall van. Trooper Seiler
stated that the second way to search the vehicle would be
with the consent of the defendants. At no time up until
this point did the troopers threaten to arrest the defend-
ants, to impound their vehicle or to obtain a search war-
rant. In addition, it was further stated that the defendants
had an absolute right to refuse to permit the search. De-
fendants then agreed to allow the police to search the
vehicle and signed a handwritten consent granting the
troopers permission to search the van.

With the assistance of defendant Santos, the troopers
searched the van. Defendant Santos went to the front
seat of the van, removed a box from under the seat, and
extracted a set of keys which he used to open the tailgate.
The inside of the van contained suitcases, clothing bags, a
cooler, a mattress and blankets. When Santos asked,
“Where would you like to start?” Trooper Seiler selected
one of the suitcases and Santos thereupon unlocked the
combination lock on the suitcase and began removing the
clothing inside. Trooper Seiler noted that among the
piles of clothing there was a tightly rolled newspaper, and
upon unrolling it, discovered a quantity of marijuana. Un-
daunted, Santos asked where the troopers would next like
to look, and Seiler selected a second suitcase, whereupon
Santos remarked, “Here's where you make sergeant.”
Santos unlocked the combination lock and opened the
suitcase, which was filled with marijuana packaged in large
bundles. Defendants were then handcuffed and taken to

(na ania a a a a

Appendix III A4l

the local State Police barracks. A subsequent search re-
vealed other large caches of marijuana, similarly packaged,
including 49 kilos concealed in the spare tire compart-
ment. In all, defendants had been transporting more than
225 pounds of the contraband. Thereafter, the defendants
signed a form indicating that they did not wish to make
any further statements and that they wished to see at-
torneys.

The defendants were subsequently transported by the
troopers to the district magistrate’s office where formal
charges were made. While enroute, Trooper Seiler ini-
tiated a conversation with Trooper Geary, both of whom
were in the front seat, regarding a recent television pro-
gram dealing with the smuggling of marijuana into the
United States from Mexico. Upon overhearing this con-
versation, Richard, who was sitting with Santos in the back
seat, stated, “If you're ever in California and want mari-
juana, see me.” At this point Trooper Geary turned to
Santos and asked him if the marijuana came from Mexico,
to which Santos answered, “It’s not mine.” Richard vol-
unteered at this time, “It’s mine.” Trooper Geary there-
after continued the questioning of the petitioners in order
to obtain more information. Subsequently, at the county
prison, defendant Santos stated that he was assisting de-
fendant Richard in transporting the marijuana from Cali-
fornia to the east for a fee of one thousand dollars.

Petitioners have exhausted their state remedies. They
are not required to make use of the provisions of the Post
Conviction Hearing Act’ or raise issues again which were
determined on direct appeal. Recent cases have con-
sistently held that a state prisoner’s thorough exercise of
direct appellate remedies is a sufficient exhaustion of state
remedies for federal habeas corpus purposes. United

1. 1965, Jan. 25, P. L. 1580 § 2, 19 P. S. §§ 1180-1182.

A42 Appendix III

States ex rel. Schultz v. Brierly, 449 F. 2d 1286, 1287 (3rd
Cir. 1971); Osborn v. Russell, 434 F. 2d 650, 651 (3d Cir.
1970). The Supreme Court made it clear in Brown v.
Allen, 344 U. S. 443, 447, 97 L. Ed. 469 (1953), that the
exhaustion doctrine is not intended to give the states more
than one full chance. See also, United States ex rel. Geisler
v. Walters, 510 F. 2d 887 (3d Cir. 1975).

Petitioners rely on the recent holding of the Supreme
Court in the case of Brown v. Illinois, — U. S. —, 45 L. Ed.
2d 416 (1975), for their contention that a writ of habeas
corpus should be issued discharging petitioners from
custody on the grounds that the marijuana in the present
case was seized as a result of a search illegal under the
Fourth Amendment and was therefore inadmissible under
the exclusionary rule announced in Wong Sun v. United
States, 371 U. S. 471, 9 L. Ed. 2d 441 (1963).

In Wong Sun the Supreme Court clarified the nature
of the Fourth Amendment protection from unreasonable
searches and seizures by extending the scope of the ap-
plication of the exclusionary rule to verbal statements as
well as to the more traditional seizures of tangible “papers
and effects.” In addition to the exceptions to the ex-
clusionary rule established by the court in Silverthorne
Lumber Co. v. United States, 251 U. S. 385, 64 L. Ed. 319
(1920), and Nardone v. United States, 308 U. S. 338, 84
L. Ed. 307 (1939),? the Wong Sun Court recognized that
not all evidence is “fruit of the poisonous tree” simply be-
cause it could not have come to light but for the illegal

2. In Silverthorne the Supreme Court held that the exclusion-
ary rule has no application where the government learns of the
evidence “from an independent source.” 308 U. S., at 392. The
Supreme Court delineated a second exception to the exclusionary
rule in Nardone v. United States, supra, for cases in which the
connection between the lawless conduct of the police and the dis-
covery of the challenged evidence has “become so attenuated as
to dissipate the taint.

ee ee ae

Appendix III A43

actions of the police. Specifically, the Supreme Court held
that the application of the exclusionary rule was dependent
on “‘whether, granting establishment of the primary il-
legality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the
primary taint’. . . .” Wong Sun, supra, at 455. Ac-
cordingly, where a statement is the product of an inter-
vening independent act of a free will and such is “sufhi-
ciently an act of free will to purge the primary taint of the
unlawful invasion” (Id., at 486); see, Brown v. Illinois,
supra, at 426, then the statements and other evidence ob-
tained after an illegal arrest or search are admissible as
evidence.

In Brown v. Illinois, the Supreme Court elaborated
on the principle it first announced in Wong Sun. The
facts of the Brown case are briefly as follows. The de-
fendant was arrested outside his apartment without prob-
able cause and without a warrant during an investigation
of a murder which had occurred a week earlier. After
having been driven to the stationhouse, defendant was
taken to the interrogation room, given his Miranda warn-
ings and questioned concerning the murder under investi-
gation. Subsequently, defendant made an in-custody
inculpatory statement admitting his participation in the
murder. After accompanying the police while they located
and arrested his accomplice, defendant was again placed
in the interrogation room and administered his Miranda
rights, whereupon he gave a second statement providing a
factual account of the murder substantially in accord with
his first statement but containing factual inaccuracies with
respect to his personal background. The Supreme Court
of Illinois recognized the unlawfulness of the defendant’s
arrest, but held that the giving of Miranda warnings in

A44 Appendix III

and of themselves served to break the causal connection
between the illegal arrest and the giving of any statements,
and to vitiate the taint of the illegal arrest, so that any
subsequent statement, even one induced by the continuing
effects of unconstitutional custody, w2s admissible so long
as, in the traditional sense, it was voluntary and not
coerced in violation of the Fifth and Fourteenth Amend-
ments. The Supreme Court granted certiorari because of
its concern about the implication of its holding in Wong
Sun to the facts of the Brown case.

After reviewing the facts and the holding of Wong
Sun, the Court, in Brown, held that Miranda warnings,
alone and per se, do not ensure that the act is sufficiently
a product of free will to break the causal connection be-
tween the illegality of the arrest and any subsequent con-
fessions. The Miranda warnings are only a procedural
safeguard employed to protect Fifth Amendment rights,
specifically the Fifth Amendment guarantee against
coerced self-incrimination, from the compulsion inherent
in custodial surroundings. The Court further stated:

“The exclusionary rule, however, when utilized to
effectuate the Fourth Amendment, serves interests
and policies that are distinct from those it serves under
the Fifth. It is directed at all unlawful searches and
seizures, and not merely those that happen to produce
incriminating material or testimony as fruits. In short,
exclusion of a confession made without Miranda warn-
ings might be regarded as necessary to effectuate the
Fifth Amendment, but it would not be sufficient fully
to protect the Fourth. . . . (emphasis supplied )

“Thus, even if the statements in this case were
found to be voluntary under the Fifth Amendment,
the Fourth Amendment issue remains. In order for
the causal chain, between the illegal arrest and the

Appendix III -A45

statements made subsequent thereto, to be broken,
Wong Sun requires not merely that the statement meet
the Fifth Amendment standard of voluntariness but
that it be ‘sufficiently an act of free will to purge the
primary taint... . .” 45 L. Ed. 2d, at 426.

For the purpose of determining whether a confession
is the product of a free will under Wong Sun, the Court
held that the voluntariness of the statement is only a
threshold requirement. While the Miranda warnings are
an important factor in determining whether the confession
is obtained by exploitation of an illegal arrest, all of the
facts of each case must be considered. Other relevant
factors include the temporal proximity of the arrest and
the confession, the presence of intervening circumstances,
and, particularly, the purpose and flagrancy of the official
misconduct.

In Commonwealth v. Bishop, 425 Pa. 175, 182, 228
A. 2d 661 (1967) the Pennsylvania Supreme Court ex-
plained the Wong Sun test this way: “[I|f the connection
between the arrest and the confession is shown to be so
vague or tenuous ‘as to dissipate the taint’ or ‘sufficiently
an act of free will,’ the confession is admissible, despite
the illegality of the arrest. By ‘sufficiently an act of free
will,’ we mean that not only was the confession truly vol-
untary, but also free of any element of coerciveness due to
the unlawful arrest. . . .” Id., at 183. (emphasis in
original) See also, Bertrand Appeal, 451 Pa. 381, 389,
303 A. 2d 486 (1973) quoting from Bishop with approval.
The mere perfunctory recital of Miranda warnings is not a
sufficient intervening act of free will to break the chain of
events leading directly from the illegal arrest to the con-
fession. Id., at 390-91.

The federal circuit court cases similarly have held that
the mere showing of the voluntariness of the confession is

A46 Appendix III

insufficient to purge the taint of a prior illegal arrest.’
The circuit courts have pointed to other factors which are
of major significance in determining the relationship be-
tween an illegal arrest and a subsequent confession: (a)
the proximity of an initial illegal custodial act to the pro-
curement of the confession; * (b) the intervention of other
circumstances subsequent to an illegal arrest which pro-
vides a cause so unrelated to that initial illegality that the
acquired evidence may not reasonably be said to have
been directly derived from, and thereby tainted by, that
illegal arrest;° (c) the wantonness of the arrest and
flagrancy of the official police conduct;* and (d) the
existence of a significant change in circumstances, such as
affording the suspect an effective opportunity to obtain
the assistance of counsel.’

Clearly, the holdings in the aforementioned cases are
not materially different from the reasoning of the Supreme
Court in the recent decision of Brown v. Illinois. The
standard for evaluating the taint of post-illegal arrest
verbal evidence was clearly established at the time of the
trial of the present case, both in the federal courts and in
the local Pennsylvania state courts.

3. See, e.g., Collins v. Beto, 348 F. 2d 823, 828 (5th Cir. 1965);
Sua ex rel. Craig v. Maroney, 348 F. 2d 22, 29 (3d

4. Commonwealth ex rel. Craig v. Maroney, supra; Common-
wealth v. Bishop, 425 Pa. 175, 183 n. 7, 228 A. 2d 661 (1967). In
Collins v. Beto, supra, Judge Tuttle recognized the relevance of
this factor but also emphasized that the mere passage of time could
not serve to dissipate the taint, otherwise “. . . the police would
be free simply to keep a suspect ‘on ice’ for a day or two before
beginning an interrogation. . . .” (348 F. 2d, at 828).

5. Commonwealth ex rel. Craig v. Maroney, supra; Common-
wealth v. Bishop, supra.

6. Collins v. Beto, supra. (Concurring opinion, Friendly, J.)
7. Collins v. Beto, supra.

TT

Appendix III A47

The Cumberland County Court found, beyond the
mere voluntariness of the consent rendered, sufficient rel-
evant factors to properly render a decision that the consent
was free of any element of coerciveness due to the unlaw-
ful arrest. The court outlined the standard it adopted,
indicating that the illegality of an arrest should not vitiate
a subsequent consensual search if the totality of the cir-
cumstances shows a total absence of coercion, either ex-
press or implied, and that the original taint has dissipated.
See, Commonwealth ex rel. Craig v. Maroney, supra, and
Commonwealth v. Bishop, supra.

The Common Pleas Court noted that the troopers
twice administered the Miranda warnings and ascertained
that the defendants understood them. Likewise, it was
explained to them several times that the consent form need
not be signed. Under the authority of United States v.
Menke, 468 F. 2d 20 (3d Cir. 1972), this showing is suffi-
cient to establish the voluntariness of the defendants’ con-
sent to search. In Menke, following the arrest of the
defendant and the administration of Miranda warnings by
the arresting officers, the defendant allegedly volunteered
that a parcel of contraband being sought by the enforce-
ment officers was in the trunk of his automobile. Defend-
ant thereafter expressed his willingness to get it if the
agent wanted it, explaining that it would be easier for him
to get it because the trunk had a tricky lock. The Third
Circuit Court reaffirmed its holding in Government of
Virgin Islands v. Berne, 412 F. 2d 1055 (3d Cir. 1969),
cert. denied, 396 U. S. 837, reh. denied, 396 U. S. 937
(1969), stating that where a defendant is given the de-
tailed Miranda warnings, even in the absence of advising
the defendant that he was not legally obligated to open
the trunk of his automobile in the absence of a search war-
rant covering the automobile, and thereafter “. . | vol-

A48 Appendix III

untarily submits to interrogation and freely offers in-
formation on the existence and location of specifically
identified evidence, and further agrees to surrender the
evidence to the police, fully cognizant of his right to re-
main silent and fully aware that the information he pro-
vides may be used against him, the seizure of such evi-
dence does not violate the Fourth Amendment. In such a
case, the accused, by his words and actions, has abandoned
any privacy or security in the location of the evidence.

.” Id., at 1062; Menke, supra, at 24.

The Common Pleas Court, having determined the
voluntariness of the consent, continued its discussion of
the case with an analysis of further factors pertaining to
the nature of the defendants’ consent. The court found
that, contrary to the contentions of counsel for the de-
fendants, the defendants’ consent was not a mere acqui-
escence to a show of force of the troopers, and we agree.
The United States Supreme Court has distinguished the
informal and unstructured conditions of consent searches,
a part of the standard investigatory techniques of law en-
forcement agencies, which normally occur on the highway
or in a person’s home or office, from the coercive atmos-
phere of custodial or stationhouse interrogation. Schneck-
loth v. Bustamonte, 412 U. S. 218, 232, 36 L. Ed. 2d 854
(1973). The initial brief display of arms by the troopers at
the berm of the Pennsylvania Turnpike was not so in-
herently coercive as to preclude an independent, inter-
vening voluntary consent on the part of the defendants.

Further, while the holdings in Bumper v. North Caro-
lina, 391 U. S. 543, 20 L. Ed. 2d 797 (1968) and United
States v. Ricci, 313 F. Supp. 31 (E. D. Pa. 1970) establish
that cooperation of defendants in the face of law enforce-
ment officers possessed with seemingly valid search war-
rants is not the product of a free will, untainted by the

Appendix III A49

invalid warrants, these decisions are limited by their facts
to searches under color of warrants where presumably
probable cause has already been established before an inde-
pendent judicial officer and the occupant accordingly has
no right to resist the search. The facts in the present case
rebut any further contention that the troopers conducted
the search of the van under color of their office or the law
which they personify, without any justification in law for
such intrusion.* Having explained to the defendants that
they (the defendants) were stopped because the troopers
had “reasonable cause to believe,” or “reason to believe,”
that their vehicle contained a large amount of marijuana,
which in fact was true based on the police bulletin re-
ceived over the radio, the troopers further explained that
they (the police) did not have the right to search the van
unless they procured a search warrant from a district
magistrate based on sufficient probable cause, or unless the
defendants consented to such a search. Clearly, where a
person has been warned of his right to refuse the search in
addition to his Miranda rights, it is inconceivable that his
election to consent to the search and deliver the evi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1187%3A1. Public record. Not legal advice.