Petition — RICHARD v. PENNSYLVANIA (No. 75-564)

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OCT 14 if

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Supreme Court of the United States —

October Term, 1975.

No. €9°-564 |

PAUL RICHARD, a/k/a RICHARD ANTHONY HARRIS,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE COMMONWEALTH

OF PENNSYLVANIA.

ARTHUR L. GOLDBERG,

GOoLpBERG, Evans & KATZMAN,

16 North Market Square,

Harrisburg, Pennsylvania.

Counsel for Petitioner.

International Printing Co., 711 So. SOth St., Philea., Pa. 19143 — Tel. (215) 727-8711

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REASONS FOR GRANTING THE WRIT ...............-005 ces

A. The Decisions Below Fail to Apply the Ruling Enun-

ciated 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 of the Police Misconduct Involved

Re ee EE WEED sii nccuccoseccsunwesidsaneseas

i a a i al

Aprenpix I (Judgment and Opinions of the Superior Court

of the Commonwealth of Pennsylvania) ..............

ApPENDix II (Judgment and Opinion of the Court of Com-

mon Pleas of Cumberland County, Pennsylvania ......

Appenvix III (Judgment and Opinion of the United States

District Court for the Middle District of Pennsylvania) A37

TABLE OF CITATIONS.

Cases: Page

Brown v. Illinois, No. 73-6650 (1975) 2, 8, 9, 13, 14, 15, 16, 17, 18, 19

Commonwealth v. Bishop, 425 Pa. 175 (1967) ............. 14

Commonwealth v. Simila, 434 Pa. 219, 352 A. 2d 575 (1969) 20

Whiteley v. Warden, 401 U. S. 560 (1971) ................. 7, 20

Wong Sun v. United States, 371 U. S. 471 (1963) ..2, 11, 12, 13,14

Constitutional Provisions and Statutes: Page

United States Constitution, Fourth Amendment ... .2, 14, 15, 18, 20

United States Constitution, Fifth Amendment ............. i414

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UN Oe os sons sce cccnvakaanndveacdscssnea 2

IN THE

Supreme Court of the United States

OcrosBER TERM, 1975.

No.

PAUL RICHARD, a/x/aA RICHARD ANTHONY

HARRIS,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE COMMONWEALTH

OF PENNSYLVANIA.

The Petitioner, Paul Richard, a/k/a Richard Anthony

Harris, 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 Cum-

berland County, Pennsylvania appears at Appendix II,

infra, pp. A22-A36. The majority, concurring, and dissent-

ing opinions of the Superior Court of Pennsylvania appear

at 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 sen-

tence of imprisonment, Petitioner's attorneys filed an

Application for a Writ of Habeas Corpus on August 8,

2 Petition for Writ of Certiorari

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 unre-

ported 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 during 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?

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 unreason-

able 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”.

Petition for Writ of Certiorari 3

STATEMENT.

On November 16, 1972, your Petitioner was a pas-

senger in a International Travel-All van, which was

traveling east on the Pennsylvania Turnpike, which van

was owned and operated by Santos and was registered in

California. At approximately 1:30 P. M. the State Police

communications center at Highspire, Pennsylvania, broad-

cast a radio message which described Petitioner'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

Santos’ vehicle shortly after he had received the radio

message. Trooper Seiler indicated that he observed

nothing suspicious, nor any motor vehicle violation of any

kind, and then radioed for assistance and followed 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 Santos to stop. The officers emerged from their

cars armed with a .30 caliber semi-automatic carbine and

a 12 gauge pump shotgun. Petitioner and Santos were

ordered to spread eagle while Trooper Geary covered

them with his carbine. After a patdown search indicated

that the suspects were unarmed, the troopers returned

their rifle and shotgun to their cars while retaining their

hand weapons in their holsters.

Trooper Seiles then conducted a radio check on the

operator, Santos’, driver's license and owner's card, while

Trooper Geary read the Miranda warnings from a standard

police form. Both Santos and Richard stated that they

understood their rights. Trooper Geary stated that he

wanted written permission to search the International

Travel-All fo: their protection (the police protection) in

4 Petition for Writ of Certiorari

the event anything was missing after a search would take

place. Santos gave permission, and when informed of the

reason for signing the paper, Santos signed the paper, as

did Richard, who had no conversation with the trooper

whatsoever during the entire period of time at the van.

Trooper Seiler rejoined the group after his license check

proved negative and he then administered the Miranda

warnings a second time. Santos asked why he had been

stopped. Both Santos and Richard were told by the

trooper that the trooper had reasonable cause to believe

that his vehicle contained a large amount of marijuana.

At the suppression hearing, Santos testified that the

troopers next told him that there were two ways they could

search the van; they could either present their reasonable

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 per-

mission to search the vehicle. Santos then gave his verbal

permission for a search. Your Petitioner said nothing.

The troopers then requested that a paper be signed before

the search. Petitioner, Richard, and Santos were both 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 the Petitioner and his companion until the in-

vestigation was completed. At trial, this paper was con-

sidered to be a written consent, given by Petitioner and his

companion, to search the van. Petitioner, Richard, never

orally consented to a search of the van or anything else.

He merely signed the paper in acquiescence to the state-

ment made by the trooper that the reason for signing the

paper was for the protection of the troopers as outlined

above. There was no indication that Petitioner, Richard,

had any right to grant permission to search the vehicle,

Petition for Writ of Certiorari 5

since it was not registered in his name, nor was he the

operator, nor had he in any way indicated any ownership

or control of the vehicle and its contents. Santos then con-

sented to a search. Richard, however, did not consent,

nor did he say anything. Thereafter, Santos opened two

combination locked suitcases, which the troopers had dis-

covered inside the van. Prior to opening the suitcases,

Santos 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 Santos were handcuffed and taken to a local State

Police barracks. The paper signed by Richard and Santos

was written by the troopers and not by the Defendants.

During the entire situation the conversation was carried on

by Santos and Richard said little or nothing, but stood

there during the course of the conversation.

Critical circumstances of the present case include the

following facts. Only nine or ten minutes elapsed between

the moment Officer Seiler first saw the vehicle and the point

at which the alleged written consent to search the vehicle

was obtained. This time was taken directly from the testi-

mony of the officer, who had logged the time on various

documents being kept by the police officers. The stopping

of the vehicle, the spread-eagle search at gun point, the

return of the Officer’s weapons to their cars, the reading of

Miranda rights, the driver’s license check, the back and

forth questioning which preceded the signing of the consent

to search, and the signing of the instrument itself, includ-

ing the contact to headquarters and the arrival of the sec-

ond vehicle on the scene, all occurred within the space of

nine or ten minutes. Further, no evidence was introduced

throughout the entire proceedings which tended to estab-

lish probable cause for radio broadcast which triggered the

arrest and consequent search. No evidence was produced

6 Petition for Writ of Certiorari

at either the suppression hearing or at trial which in any

way indicated the source of the information upon which

the police broadcast was made, nor was evidence intro-

duced as to the particular nature of the information that

led the police to conclude that Santos’ vehicle was carry-

ing 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 Santos prior to the arrest.

At the barracks, Santos and Richard refused to sign

waiver forms, and instead indicated that they did wish to

consult with an attorney and crossed out the section in-

dicating that they were willing to answer questions, indicat-

ing an unwillingness to answer any questions at that time

or at any time thereafter. After leaving the barracks on the

way to the District Magistrate's Office, the troopers en-

gaged in conversation and attempted what they call “in-

formal, inquisitive type conversation . . . to gain informa-

tion”. This was subsequent to the very absolute

determination of Santos and Richard not to answer ques-

tions. The troopers indicated that this was a subtle method

of getting around such refusals to sign the waivers. It was

alleged that an incriminating statement was made during

that time by Richard, although the officer originally testi-

fied that the statement was made by “someone in the back-

seat’, both Santos and Richard being in the backseat.

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

Court of Common Pleas of Cumberland County, Pennsyl-

vania. A verdict was issued on May 21, 1973, in which

Petitioner was held guilty on a single count of unlawful

Petition for Writ of Certiorari 7

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 Santos’ 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

April 16, 1974, Petitioner was sentenced to a term of im-

prisonment of not less than two nor more than five 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 probable cause,

citing Whiteley v. Warden, 401 U. S. 560 (1971). The

Court assumed arguendo that the officers were similarly

not entitled to stop Santos’ vehicle, citing Justice Black’s

dissenting opinion in Whiteley, supra. Nonetheless, the

Court concluded that the marijuana was admissible be-

cause Petitioner's consent to search was voluntarily given

and such consent was sufficient to dissipate any taint re-

sulting from the illegal arrest.

On April 30, 1975, Petitioner's attorney filed a Petition

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

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

8 Petition for Writ of Certiorari

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 Santos’ 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.

Petition for Writ of Certiorari 9

REASONS FOR GRANTING THE WRIT.

A. The Decisions Below Fail to Apply the Ruling Enun-

ciated 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

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 ef-

fects of unconstitutional custody under the Fourth Amend-

ment. While none of the lower Courts’ opinions in the

present case have adopted the type of per se rule con-

demned by Brown, supra, it is Petitioner's contention that

the lower Courts failed to correctly apply the test an-

nounced 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

10 Petition for Writ of Certiorari

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

initially left alone in the interrogation room while the off-

cers 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 of a

poolroom and that a bullet taken from the ceiling of

the poolroom would be compared with the bullets taken

from the murder victim’s body. At this point, approxi-

mately one hour had elapsed since Brown’s arrest. An

officer then asked Brown whether he wanted to talk about

the homicide. 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

Supreme 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 warnings

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 ob-

served that the Fitth Amendment is in ‘intimate rela-

Petition for Writ of Certiorari 11

tion’ 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 coalesce, since the ‘unreasonable

searches and seizures’ condemned in the Fourth

Amendment are almost always made for the purpose

of compelling a man to give evidence against himself,

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 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 hap-

pen to produce incriminating material or testimony as

fruits. In short, exclusion of a confession made with-

out Miranda warnings might be regarded as necessary

to effectuate the Fifth Amendment, but it would not

be sufficient fully to protect the Fourth. Miranda

warnings, and the exclusion of a confession made with-

out them, do not alone sufficiently deter a Fourth

Amendment violation (Footnote: the Miranda warn-

ings in no way inform a person of his Fourth Amend-

ment rights, including his right to be released from

unlawful custody following an arrest made without a

warrant or lacking probable cause ).

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

statements made subsequent thereto, to be broken,

Wong Sun requires not merely that the statement

12 Petition for Writ of Certiorari

meet the Fifth Amendment standard of voluntariness

but that it be ‘sufficiently an act of free will to purge

the primary taint.’ 371 U. S. at 486. Wong Sun thus

mandated consideration of a statement’s admissibility

in light of the distinct policies and interests of the

Fourth Amendment.”

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 an-

nounced 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 misco: duct too diverse, to permit

protection of the Fourth Amendment to turn on such

a talismanic test. The Miranda warnings are an im-

portant factor, to be sure, in determining whether the

confession is obtained by exploitation of an illegal ar-

rest. But they are not the only factor to be considered.

The temporal proximity of the arrest and the confes-

sion, the presence of intervening circumstances, and

particularly, the purpose of flagrancy of official mis-

conduct are all relevant. The voluntariness of the

statement is a threshold requirement. And the burden

of showing admissibility rests, of course, on the pros-

ecution.”

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.”

Petition for Writ of Certiorari 13

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 iy:volve constitutionally impermissible

arrests of a similar nature. In both cases the warrantless

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 sub-

sequently obtained statement was much shorter than that

in Brown. In Brown approximately one hour had elapsed

between his illegal arrest and his subsequent confession.

In the present case a spread eagle search was conducted

at gunpoint before any conversation occurred. The con-

sent 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 immediate circum-

stances 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 fore-

going rule. In truth, it is a practical impossibility for any

conscientious explanation or warning to have been given to

these Defendants, which would have freed them from the

frenzy of the event that was occurring at that moment.

The Court rejected in the Wong Sun case the government’s

assertion that Toy’s statement resulted from an independent

act of free will sufficient to purge the consequences of the

illegal arrest. Wong Sun, supra.

14 Petition for Writ of Certiorari

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 it-

self. Brown’s first statement was preceded by the Miranda

warnings and was separated from his illegal arrest by an

interval of over one hour. Yet this Court expressly held

that it could hold Brown’s first statement admissible 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.

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, infra, p. A7-A8). The opinion also cites Com-

monwealth 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 obtained

from a sixteen-year old during stationhouse questioning.

The circumstances of Bishop, supra, are not similar to

those of the present case. Furthermore, the opinion com-

pletely fails to consider the extremely short interval, nine

Petition for Writ of Certiorari 15

to ten minutes, that elapsed between the illegal ai est 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 Santos’ vehicle for investigatory purposes, the opinion

fails to accord any weight to these circumstances in de-

termining 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 be-

tween the illegality of an arrest and a subsequent state-

ment or 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 ac-

cord the holding of Brown any weight in the determina-

tion of the Fourth Amendment question. At its conclusion,

the opinion refers to the fact that Santos and Richard de-

manded 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 evi-

dence 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 lower Court opinions regard the facts that Santos

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 Santos was

16 Petition for Writ of Certiorari

not acting under coercion inherent in his unlawful arrest

(Appendix I, infra, p. A7; Appendix III, infra, p. A50).

Such an approach ignores the fact that the crucial moment

for determining whether Scntos was acting under coercion

came at the time he signed the written consent to search

the vehicle. Your Petitioner, Richard, never verbally gave

consent, and signed only after he was told that the docu-

ment was for the protection of the police officers and once

Santos had signed the paper, a search of the van was in-

evitable, since the officers indicated they had possession

of reasonable cause to present to a District Justice. Faced

with this inevitability, Santos had no incentive to avoid

incriminatory acts, and Richard was not involved in the

entire transaction of the search at all. His only act was to

sign the paper that the police officer indicated was for the

protection of the police officer. The psychological pres-

sures inherent in this situation dictated that Santos co-

operate with the troopers in the hope of leniency, and

insofar as your Petitioner, Richard, is concerned, he did

not cooperate and did not indicate that he in any way was

able to cooperate or even knew that there was anything

improper in the van. Thus, to interpret the acts of Santos

as evidence of an unrestrained act cf free will is highly

unrealistic, and in no way would be indicative of any act

of free will of Defendant, Richard.

B. The Decisions Below Fail to Accord Proper Weight to

the Flagrancy 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 review-

ing 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

Petition for Writ of Certiorari 17

case. The opinion begins by holding that the arrest was

invalid because unsupported by probable cause ( Appen-

dix I, infra, p. A4), yet the opinion continued through to

its conclusion without any taint to this circumstance. 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 described

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 con-

ceded by the two detectives when they repeatedly

acknowledged, in their testimony, that the purpose

of their action was ‘for investigation’ or for ‘ques-

tioning. The arrest, both in design and in execu-

tion, was investigatory. The detectives embarked

upon this expedition for evidence 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

demonstrate the source of, or the reliability of, the in-

formation 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 ap-

pearance of Santos’ vehicle ( Appendix I, infra, p. A1l9). In

fact, under the record of the present case it remains a

complete mystery through the present time as to how and

why police attention focused on Petitioner in the first place.

18 Petition for Writ of Certiorari

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 indicating

that Petitioner possessed narcotics. Since no attempt was

made by the Commonwealth to establish probable cause

for the present arrest, either at the suppression hearing

or at trial, the conclusion is inescapable that valid prob-

able cause never existed. Obviously, the officers authoriz-

ing 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 prob-

able cause, for questioning or ‘investigating’ would be

encouraged by the knowledge that evidence derived

therefrom hopefully could be made admissible at

trial by the simple expedient of giving Miranda

warnings. Any incentive to avoid Fourth Amend-

ment violations would be eviscerated by making the

warnings, in effect, a ‘cure-all’ and the constitutional

guarantee against unlawful 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.

Oo ee ree en ee

Petition for Writ of Certiorari 19

Furthermore, the manner in which the arrest was ef-

fectuated, 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 ap-

parently believed they were dealing with dangerous sus-

pects. 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.

In the matter of your Petitioner, Richard, there is one

vital point which differentiates his case substantially from

that of Defendant, Santos’. This has to do also with the

actions of the police officers. The custodial statements

obtained from an accused subsequent to his indication in

writing of his desire for assistance of counsel and the cross-

ing out of the portion of the document that indicated his

willingness to answer questions, is of vital significance to

Defendant, Richard. In Richard's instance, there is no

question that he desired an attorney and that he did not

wish to answer questions, and that the police officers should

not have attempted to use deceitful and circuitous methods

of attempting to obtain information from him.

This is recognized in the majority opinion of Justice

Cercone when he recognized that Santos’ remark indicat-

ing knowledge and the evidence of Santos’ involvement

having been already overwhelmingly established by the

fact that the vehicle was his, he had prepared for the

illegal transportation, that he had implicit knowledge of

the contents of the luggage, a statement allegedly made

by Richard was not reversible error insofar as Santos was

concerned. The Court recognized on Page 8 of its opinion

that Richard was obviously damaged by the alleged ad-

20 Petition for Writ of Certiorari

mission of the words “it’s mine”. The Court points out

very vividly that up to that point, the government’s case

against Richard was not strong and goes on to indicate

that if the Court determined that the remark “it’s mine”

was in response to an illegal inquiry of him, Richard is

entitled to a new trial. The Court in its quotation in

Commonwealth v. Simila, 434 Pa. 219, 352 A. 2d 575

(1969) at Page 226 states:

“It is not simply custody plus ‘questioning’, as such,

which calls for the Miranda safeguards but custody

plus police conduct . . . calculated to, expected to,

or likely to, evoke admissions.”

The police officers themselves through the entire case

are quoted concerning “the informal, inquisitive type of

basis for questioning”, which in fact elicited statements

from both of these Defendants, after a refusal to sign a

waiver of rights, and an indication that both of the De-

fendants wanted counsel and did not want to answer ques-

tions. Instead of direct questioning, they wanted to keep

the Defendants at ease and engaged in conversation type

of questioning to gain information. This was a denial of

the constitutional rights of Richard, and a response al-

legedly given by Richard during that informal, inquisitive

type of questioning, that is held to be the vital point as far

as Richard was concerned in not giving Richard a new trial.

In conclusion, the applicability of this Court’s decision

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 broadcast, 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

ST TN AORN ER TN *

Petition for Writ of Certiorari 21

the radio broadcast. This Court held the resulting warrant-

less arrest unconstitutional because the evidence presented

before the magistrate who issued the warrant did not

amount to probable cause. The State unsuccessfully

argued that less stringent standards should be employed

in reviewing the police officer’s assessment of probable

cause in a situation involving a warrantless arrest, than

should be employed in reviewing a magistrate’s assessment

before issuing an arrest or search warrant. This Court re-

jected the argument on the grounds that such rule would

unwisely encourage officers to evade the warrant require-

ment of the Fourth Amendment.

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.

CONCLUSION.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

ARTHUR L. GOLDBERG,

GoLpBeErG, Evans & KATZMAN,

Attorneys for Petitioner.

APPENDIX I.

IN THE

SUPERIOR COURT OF PENNSYLVANIA.

PHILADELPHIA DISTRICT.

No. 984 Ocroser Term, 1974.

No. 983 Ocroser TERM, 1974.

J. 1105

COMMONWEALTH OF PENNSYLVANIA

0.

PAUL RICHARD a/k/a RICHARD ANTHONY HARRIS

and THEODORE JAMES SANTOS, JR.,

No. 983—APPEAL OF THEODORE JAMES SANTOS, JR.

No. 984—AprEAL OF PAuL RICHARD A/K/A

RICHARD ANTHONY HAaArkIs.

APPEAL FROM THE JUDGMENTS OF SENTENCES IMPOSED

Aprit 16, 1974, py THE Court or ComMMon PLEAs,

CRIMINAL, OF CUMBERLAND County AT No. 252

DECEMBER TERM, 1972.

Opinion BY CERCONE, J.: Fitep Marcu 31, 1975.

This appeal arises from the lower court’s entrance of

judgments of sentence against Paul Richard and Theodore

Santos after a non-jury trial. Appellants were found guilty

(Al)

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 incriminatiug 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

ne

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

veaied 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. ag me hy Warden, 401 U. S. at 573. (Dissenting Opinion

by Justice Black. )

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 v. Bustamonte, 412 U. S. 218 (1973). C.£., 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 399 (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

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

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 knowledge of the contents of the luggage made

the inference of guilt irresistible. Further, Santos’ remark

5. This remark was clearly blurted-out and, therefore, admis-

sible. As the Supreme Court 4 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 applicable 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 ,.estion 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 Al3

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 Term, 1974.

No. 984 Octroser TERM, 1974.

COMMONWEALTH OF PENNSYLVANIA

0.

PAUL RICHARD a/k/a RICHARD ANTHONY HARRIS

anp THEODORE JAMES SANTOS, JR., APPELLANTS

No. 983—APPEAL OF THEODORE JAMES SANTOS, JR.

No. 984—AppEa OF Pau Ricwarp a/k/a

RICHARD ANTHONY Harris.

APPEAL FRUM THE JUDGMENTS OF SENTENCES IMPOSED

Apri 16, 1974, By THE Court or ComMon PLEAS

CRIMINAL, OF CUMBERLAND County aT No, 252

DECEMBER TERM, 1972.

ConcurRRING 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 Horrman’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 Al5

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 OcroBEeR 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 RicHarp ANTHONY Harris

APPEAL FROM THE JUDGMENT OF SENTENCE IMPOSED BY

THE CourT OF COMMON 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

Al8 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, U. S. ;

, 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, U. S. :

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).

—

s--

Appendix I Al19g

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 Sagan

as sotnilinn In Adams, the police officer had a reasonable sus-

picion of criminal activity to justify a “Terry” patdown. See Te

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.

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

RicHARD C. SNELBAKER, Esquire, and

James M. Moran, Esourre, for Defendants

Re: MorIons IN ARREST OF JUDGMENT AND FOR NEW TRIAL

Before SHuGHAaRT, P. J., and WEIDNER, J.

Wenner, 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

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 Commonwealth of Pennsylvania.

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

Except as authorized by this act, the manufacture, de-

livery, or possession with intent 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 licensed 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 _» prove that Defend-

ants were not exempt under the act but that it was a 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

it ec cite see setouk we

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 causé 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 seareh 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

ee

EI eee a A Ae nt nett 6 oe mms © biee ime. . _

Appendix 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.

OF a8 Oe ee tee Re SO ne te

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 rec’ tly clarified the law in re-

gard to investigatory stops i.. 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

— ne Beene el ce te A

I ee

eee et

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 would 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 Commonwealth 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 an’ 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.

ee eee ne

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

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 OF 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.

Civic No. 75-994

IN THE MATTER OF THE APPLICATION OF

PAUL RICHARD, a/k/a

RICHARD ANTHONY HARRIS

ov.

EDGAR B. BAYLEY, Assistant District ATTORNEY,

CUMBERLAND County, 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

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 that 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

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. Fd. 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

--Q. 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

e 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.

a ”

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’. . . .” Weng 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 “suffi-

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, was 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

ee ee

:

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);

Commonwealth ex rel. Craig v. Maroney, 348 F. 2d 22, 29 (3d

Cir. 1965).

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.

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 evidence

up to the police was anything less than a free and voluntary

abandonment of his security in this otherwise constitu-

tionally protected area. Menke v. United States, supra, at

25. As the Common Pleas Court noted, “Although it is

argued that consent to the inevitable cannot be free of

coercion (citation omitted ), it is clear that the instant case

is within the distinction to that rule, that irrespective of

apparent inevitability, a consent can be voluntarily given

if there is evidence of knowledge that a right is sur-

rendered, of which the consenting party is fully apprised.

Commonwealth v. Mamon, 449 Pa. 249, 254 (1972).”

8. See, e.g., Amos v. United States, 255 U. S. 313, 65 L. Ed.

654 (1921); Johnson v. United States, 333 U. S. 10, 92 L. Ed. 436

(1948).

A5O Appendix III

The Supreme Court concluded, in Schneckloth v.

Bustamonte, supra, at 235-46, that a consensual search

does not entail a waiver since it is in no way involved in

protection of the ascertainment of truth or of the fairness

of a criminal trial. As a consequence the government is

not required to demonstrate a knowing or intelligent

waiver, or an intentional relinquishment or abandonment

of a known right or privilege, nor is the court required to

indulge in every reasonable presumption against waiver

of fundamental constitutional rights. See, Johnson v.

Zerbst, 304 U. S. 458, 464, 82 L. Ed. 1461 (1938).

The Common Pleas Court’s decision also dismissed

any allegation that the actions of the troopers constituted

flagrant official police misconduct. In finding that the

entire sequence of events demonstrated that the defend-

ants were fully informed of their right to require a search

warrant, and at liberty to exercise that right without inter-

ference, the court noted (1) that the defendants demanded

to know why they had been stopped before they would

acknowledge their Miranda rights, and (2) that both de-

fendants willingly signed the consent form even after re-

peated warnings that they could refuse to sign. The court

concluded that this conduct militated against a conclusion

that the defendants were submissive to the troopers’ sug-

gestions or “show of force.” The court further noted that

defendant Santos actively assisted in the search of the

vehicle; such affirmative assistance in a warrantless search

also implies a consent voluntarily given. Menke v. United

States, supra; United States ex rel. Anderson v. Rundle,

974 F. Supp. 364, 371 (E. D. Pa. 1967), affd, 393 F. 2d

635 (3d Cir. 1968). Here, too, we agree with the Court

of Common Pleas.

Counsel for the defendants contend that the consent

was tainted by the prior wanton and illegal arrest; that the

ee

Appendix III A5l

police told the defendants they had reasonable cause for

the arrest, when, in fact, they did not. While the arrest

ot the defendants at the time that the troopers frisked them

was not based on valid probable cause and was therefore

illegal, the stopping of the van and the subsequent search

were justified under the circumstances and did not amount

to flagrant or wanton misconduct. Upon a review of the

holdings in Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889

(1968) and Adams v. Williams, 407 U. S. 142, 32 L. Ed.

2d 612 (1972), the Common Pleas Court properly held

that the troopers were acting lawfully when they stopped

the defendants’ vehicle to conduct an investigation of the

information they had received over the police radio. As

was stated by the Supreme Court in Adams:

“In Terry this Court recognized that a ‘police

officer may in appropriate circumstances and in an

appropriate manner approach a person for purposes of

investigating possible criminal behavior even though

there is no probable cause to make an arrest.’ The

Fourth Amendment does not require a policeman who

lacks the precise level of information necessary for

probable cause to arrest to simply shrug his shoulders

and allow a crime to occur or a crimina 0 escape.

On the contrary, Terry recognizes 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 determine his identity or to maintain the

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 )

32 L. Ed., at 616-17.

The troopers maintained that they had “reasonable cause

to believe” that there was a large quantity of marijuana in

‘52 Appendix III

the van as justification for stopping the vehicle. This was

in fact the case. The troopers could reasonably have be-

lieved that there was marijuana being transported in the

van on the basis of the information received over the radio.

At no time did the officers claim that they had probable

cause to either arrest the defendants or to search the van.

Nor do the Supreme Court cases establishing the rights of

defendants mandate an extended explanation on what con-

stitutes probable cause to search, or on the difference be-

tween “reasonable cause to believe” an investigatory stop

is warranted, and “probable cause” to search.

The subsequent search of the van conducted by the

troopers was certainly not gross misconduct, irrespective

of the defendants’ consent to search. Recent Supreme

Court opinions have clearly recognized a necessary dif-

ference between circumstances justifying a warrantless

search of an automobile and a home or office. Chambers

v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419 (1975); Carroll

v. United States, 267 U. S. 132, 69 L. Ed. 543 (1925).

Warrantless searches and seizures of contraband goods are

more liberally allowed under the Fourth Amendment

where they are in the course of transportation, and easily

removed from the jurisdiction or destroyed. Such a seizure

is legal if the seizing officer has reasonable or probable

cause for believing that the vehicle which he stops and

seizes has contraband therein which is being illegally

transported. Id., at 156. The search of an automobile on

probable cause proceeds on a theory wholly different from

that justifying the search incident to an arrest; the right

to search and the validity of the seizure are not dependent

on the right to arrest, but rather they are dependent on

the reasonable cause the seizing officer has for belief that

the contents of the automobile offend against the law.

Chambers, supra, at 49. Acting upon an unsubstantiated

police bulletin received over the radio, the troopers could

Appendix III A53

reasonably have believed the issuer of such information

had sufficient probable cause to justify their stopping and

searching the van immediately before it could be removed

from the locality. In truth, the dispatcher may not have

had valid probable cause to warrant the arrest of the de-

fendants, or perhaps even the search of the van, but that

in no way renders such arrest and search flagrant or

wanton. And the Supreme Court has held that it sees no

difference, for constitutional purposes, “between on the

one hand seizing and holding a car before presenting the

probable cause issue to a magistrate and on the other hand

carrying out an immediate search without a warrant.

Given probable cause to search, either course is reasonable

under the Fourth Amendment.” Chambers, at 52. Even

without actual probable cause to search, either procedure

is reasonable if at the time of the search the police could

reasonably have presumed the dispatcher to have sufficient

probable cause to search the fleeting target.

The Common Pleas Court observed that coercion de-

pends not only upon what was done by the troopers, but

also upon the effect the troopers’ actions had upon the

consenting party. By reason of the fact that the defend-

ants demanded to know why they had been stopped before

they would acknowledge the Miranda warnings, and in

light of their conduct during the search itself, it appears

that not only is any contention of submission or acquies-

cence to flagrant official conduct dispelled, but also that

such conduct on the part of the petitioners constitutes an

intervening cause for consent so unrelated to the initial

illegality that the acquired evidence may not reasonably

be said to have been directly derived from, and thereby

tainted by, that illegal arrest. As Judge Spaeth concluded

in his concurring opinion to the decision of the Superior

Court of Pennsylvania affirming the Court of Common

Pleas:

A54 Appendix III

“Accepting the troopers’ testimony, it appears that

appellants were specifically told they did not have to

consent. Further, the troopers took the unusual pre-

caution of obtaining appellants’ written consent. And

finally, the manner in which appellants conducted

themselves manifests a hardboiled bravado, which, on

balance, persuades me that although most persons

would have found the circumstances too threatening

to permit of voluntary consent, appellants did not.”

Commonwealth wv. Richard and Santos, 983-984

October Term 1974.

Therefore, we conclude that the conduct of the

troopers during the stopping of the defendants and the

search of the van was not wanton or flagrant. We further

find that a voluntary and uncoerced act of consent inter-

vened between the illegality of the arrest and the subse-

quent consent, and thereby dissipated any taint.

The defendants emphasize the temporal proximity of

the initial illegal arrest to the procurement of the consent,

pointing out that the consent to search was obtained within

the space of nine or ten minutes. While the temporal

proximity is admittedly a factor which should be con-

sidered, and in fact was not expressly considered in the

opinions rendered by the Superior Court of Pennsylvania

or the Common Pleas Court, we conclude that other factors

preponderate to indicate the intervention of a voluntary

act of consent within that short lapse of time. In recog-

nizing the relevance of this factor, Judge Tuttle, in his

opinion in Collins v. Beto, 348 F. 2d 823, 828 (5th Cir.

1965), qualified the weight to be accorded to it by also

emphasizing 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... .”

Appendix III A55

We also reject the contention proffered by counsel for

defendant Richard that the written consent obtained from

Richard was vitiated by fraudulent misrepresentations on

the part of the troopers. Specifically, counsel contends

the signing was the result of a representation by the

troopers to the effect that the purpose of signing the paper

was to “release” the officers from any possible consequences

of the search. Trooper Geary’s precise testimony, how-

ever, was that the police would not search the vehicle

based on defendants’ oral consent alone, but rather they

would require written permission to protect the troopers

from any recourse if something would be stolen or any-

thing of that nature. Thereafter, the defendants were

again cautioned that they did not have to give the troopers

permission to search the van. The written permission slip

which was signed by both defendants further indicates the

clear consent purpose of the signing: “I give my permis-

sion to Trp. Robert C. Geary and Tpr. Max Seiler to search

my veh. . . .” We find that Richard’s consent was clear

and unequivocal, and not induced by any misrepresenta-

tions on the part of the troopers.

The final contention of counsel for defendant Richard

is that his (Richard’s) statement, “It’s mine,” spoken while

enroute to the district magistrate’s office for arraignment,

should have been excluded from the testimony pursuant to

a written agreement with the court to exclude such state-

ments.” The record is devoid of any such agreement or

9. Counsel also argues that testimony of the troopers estab-

lishing that the incriminating statement was made by defendant

Richard at that time materially changed between the suppression

hearing and the trial. Ly = mw Geary specifically attributed the

statement, “It's mine,” to defendant Richard at both the suppres-

sion hearing and the trial. Whereas, Trooper Seiler indicated at

the suppression hearing that the statement was made by “someone

in the back seat;” it appears that his more ific testimony at

the trial may have been prompted or recalled by Trooper Geary’s

prior testimony at the suppression hearing.

A56 Appendix III

statement, and as a consequence there is no basis by which

to determine the content or terms of such agreement. Fur-

ther, the record indicates that the statement, “It’s mine,”

was not in response to any questioning by the troopers. A

question had been directed to defendant Santos by Trooper

Geary concerning the source of the marijuana and de-

fendant Richard’s statement was a spontaneously vol-

unteered admission following Santos’ denial of ownership.

Under the circumstances, this does not appear to be a

situation where the police conduct was “expected to, or

likely to, evoke admissions.” Commonwealth v. Simala,

434 Pa. 219, 226, 352 A. 2d 575 (1969). What followed

did, however, constitute improper questioning in light of

the signed waiver forms which had been crossed out in

part so as to indicate that the defendants were not willing

to answer questions and desired to speak with an attorney

first. As Trooper Geary testified, he undertook “informal,

inquisitive type questioning” in order to obtain further

information following defendant Richard’s apparent open-

ness to talk. Therefore, subsequent responses by the de-

fendants to questions asked by the troopers were properly

excluded as the product of improper custodial interrogation.

Accordingly, an appropriate order will be entered.

R. Dixon HERMAN,

R. Dixon Herman,

United States District Judge.

Dated: September 16th, 1975.

Appendix III A57

UNITED STATES DISTRICT COURT

For THE Mipp_e Districr of PENNSYLVANIA.

Civit No. 75-943.

Civit No. 75-994.

IN THE MATTER OF THE APPLICATION OF

THEODORE JAMES SANTOS, JR.

v.

EDGAR B. BAYLEY, Assistant Districr ATTORNEY.

CUMBERLAND County, Pa.

IN THE MATTER OF THE APPLICATION OF

PAUL RICHARD, a/k/a

RICHARD ANTHONY HARRIS

v.

EDGAR B. BAYLEY, Assistant Districr ATTORNEY,

CUMBERLAND County, Pa.

ORDER.

AnD Now, this 16th day of September 1975, Ir Is

Orperep that for the reasons set down in the memorandum

filed this date, the applications of Theodore James Santos,

Jr. and Paul Richard, a/k/a Richard Anthony Harris, for

writs of habeas corpus be and are hereby denied.

R. Drxon HERMAN,

R. Dixon Herman,

United States District Judge.