Opinion
Criminal Action No. 03-0349.
April 1, 2004
MEMORANDUM
Defendant Naim Pryor ("Pryor") is charged in a seven-count indictment with conspiracy to possess with intent to distribute controlled substances, possession with intent to distribute controlled substances, and possession of a firearm. Defendant Stacey Crittenton ("Crittenton") is charged with five counts of conspiracy to possess and possession with intent to distribute controlled substances.
Before the Court are Defendants' motions to suppress physical evidence. The Court held an evidentiary hearing on March 23, 2004 and now makes the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
1. On November 29, 2002, Officer Billy Golphin was on duty as a Philadelphia Police Officer in the 18th district, assigned to a Narcotics Enforcement Team ("NET").
2. Officer Golphin was an experienced police officer. During his six years in the 18th district, Officer Golphin made hundreds of drug trafficking arrests for crack cocaine, powder cocaine, marijuana, and heroin. He also had specialized narcotics training at the Police Academy, which included training about the types and packaging of narcotics. Based on his experience and training, Officer Golphin is familiar with the packaging of various types of illegal drugs.
3. On November 29, 2002, Officer Golphin and his partner, Officer David Young, conducted surveillance around 5900 Market Street, concentrating on open-area drug sales.
4. At approximately 9:15 p.m. on that evening, Officers Golphin and Young, in plainclothes, parked their unmarked surveillance van on Salford Street, just south of the intersection of Market and Salford Streets. Salford Street is one-way southbound and the vehicle was facing southbound.
5. Officer Golphin sat in the second row of seats in the surveillance van. Officer Young, who was with him, was lying on the floor. The passenger seat windows of the van were tinted. From his vantage point, Officer Golphin could see southbound on Salford Street and the sidewalk looking westbound on Market Street, toward 60th Street. The area is well lighted, with bright light coming from street lights and from a store at the intersection.
6. Officer Golphin observed Defendant Pryor park a white Acura south of and less than fifteen feet in front of the surveillance van, facing southbound on Salford Street.
7. Officer Golphin watched Pryor exit the Acura, walk northbound on Salford Street pass the surveillance van, and then walk westbound on Market Street. Pryor thereupon entered the Blue Nile Bar. Shortly after, Pryor exited the bar with two males, Justin Watson and "Sonny" Camp, both of whom Officer Golphin knew to be involved in narcotics trafficking.
8. Officer Golphin watched Pryor, "Sonny," and Watson walk to the Acura. Pryor opened the door of the Acura and retrieved a plastic baggie. From this baggie, Pryor handed one bundle to Watson and several bundles to "Sonny," whereupon "Sonny" then handed Pryor a large amount of cash. Thereafter Watson and "Sonny" walked westbound on Market Street.
9. Officer Golphin described the bundles that Pryor gave to "Sonny" and Watson as the same shape and size of a pack of gum. Based on the size and shape of the items, and from his past arrests and training, Officer Golphin reasonably believed that these bundles contained heroin.
10. After the transaction, Officer Golphin saw Pryor remove a large black handgun from his waistband and place it in the trunk of the car. Pryor then retrieved a clear plastic baggie from the trunk. Officer Golphin could see small packets with "red patches" inside the baggie. Based on their packaging and size, Officer Golphin reasonably believed that these packets contained crack cocaine.
11. Before he saw Pryor putting the gun into the Acura's trunk, Officer Golphin had radioed his back-up officers, Officer Victor Davila and Sergeant Paul Brown, to stop Watson and "Sonny" and to recover the bundles given to them by Pryor. After seeing Pryor put the gun in the trunk, Officer Golphin radioed the Officers not to stop Watson and "Sonny" but to stop the white Acura, which was then traveling south on Salford Street.
12. Officer Golphin did not follow the Acura. Before he lost sight of it, however, he saw Officer Davila and Sgt. Paul Brown begin to follow it.
13. Officer Golphin saw no one other than Pryor enter or exit the Acura at any time and did not notice Defendant Crittenton in the Acura at any time.
14. As Officer Davila and Sgt. Brown, who were nearby in plainclothes, turned their unmarked car onto Salford Street, they saw the Acura in front of them, heading southbound on Salford Street and about to turn eastbound onto Chestnut Street. They pursued the Acura southbound on Salford Street and then on Chestnut Street. They requested police radio dispatch to have marked units stop the car.
15. The Acura was continuously in Officer Davila's view from the time that he started following it on Salford Street until it was stopped by marked police units on 52nd Street, between Chestnut and Market Streets. No one entered or exited the Acura during that time.
16. Officer Davila did not observe Pryor violate any traffic laws, and police radio dispatch determined that the Acura was not stolen. The sole basis for Officer Davila's request that marked units stop the Acura was the information given to him by Officer Golphin.
17. When the Acura was pulled over on 52nd Street, Sgt. Brown approached the Acura on the driver side, and Officer Davila approached the Acura on the passenger side. Sgt. Brown removed Pryor from the car and patted him down, recovering $470 in cash and a cell phone. Pryor was then arrested.
18. As Officer Davila walked up on the passenger side, he observed Crittenton looking towards Sgt. Brown on the driver's side. Officer Davila saw Crittenton make a shoving motion to his right side with a baggie in his hand
19. Upon opening the passenger door, Officer Davila saw the door compartment with a plastic baggie inside. He ordered Crittenton out of the car, conducted a cursory search of Crittenton, and then arrested him.
20. In the open passenger door compartment, Officer Davila observed numerous small objects in the baggie, and based on the baggies of narcotics he had seen in the past, determined that the small objects were narcotics. Officer Davila recovered the baggie from a compartment on the passenger door "seconds" after he ordered Crittenton out of the car. Inside the baggie were twenty-four red-tinted plastic packets, each containing what Officer Davila believed to be crack cocaine.
21. Police checked the passenger area of the Acura for weapons. Sgt. Brown then drove the car to the 18th district and secured it. Officer Davila did not open the Acura's trunk while the car was on 52nd Street, nor did any other officer do so in his presence.
22. Crittenton was taken to police headquarters of the 18th district. Officer Davila searched Crittenton at the district and recovered $323 in cash, a tally sheet, six redtinted packets of suspected crack cocaine matching the twenty-four found earlier, seven heat-sealed packets of suspected heroin, and a piece of paper with the word "SMACC" and a phone number written on it.
23. Officer Sean Kelly, assigned to a Narcotics Field Unit in Philadelphia, prepared a search warrant for the Acura, based on information obtained from Officers Golphin and Davila. Officer Kelly presented the warrant to a bail commissioner who signed it. Officer Kelly then executed the warrant at 2:10 a.m. on November 30, 2002.
24. Officer Kelly found several items in the Acura. From inside a compartment on the dashboard, he recovered one clear plastic baggie containing three yellow-tinted heat-sealed packets, each containing a white powder (alleged cocaine), and two clear heat-sealed packets, each containing a blue glassine packet of white powder (alleged heroin).
25. From inside the trunk of the Acura, Officer Kelly recovered a tan food market shopping bag, containing a .40 caliber handgun with an obliterated serial number, loaded with one live round in the chamber and seven live rounds in the magazine.
26. Also in the bag, Officer Kelly found a metal hand-held scale, numerous black rubber bands, a "Paid" stamp, a black ink stamp pad, a clear ziplock packet containing a white powder (alleged heroin), a clear ziplock packet containing a brownish-white substance, twenty-eight clear jars with black lids containing a green weed substance (alleged marijuana), and a clear baggie containing numerous new and unused redtinted ziplock packets.
27. Additionally, Officer Kelly found a clear ziplock bag containing a straw and two spoons with white residue, a playing card from a deck of cards, unused packets, and a box of unused sandwich baggies.
28. Officer Kelly also recovered from the trunk one Philadelphia Gas Works bill addressed to Pryor and two Philadelphia Electric Company bills, one of which was addressed to Pryor. Additionally, Officer Kelly found three photographs.
29. A certified copy of the Pennsylvania Bureau of Motor Vehicle record for the Acura shows that, on November 29, 2002, the Acura was titled to Akeia Demota, who was the girlfriend of Pryor.
30. Thereafter, the title was transferred to the City of Philadelphia. The car was then made available to ATF Agent John Vitzhum at a city lot to be photographed.
31. While photographing the Acura, Agent Vitzhum found a yellow slip of paper in the map compartment of the passenger door. The word "SMACC" and a phone number were written multiple times on this slip of paper, which was substantially identical to the paper recovered from Crittenton. Additionally, Agent Vitzhum found a clear plastic bag with the imprint of an apple on it in the armrest.
32. Finally, the testimony of defense witness Justin Watson was not credible to the extent it contradicted the testimony of Officer Golphin.
II. CONCLUSIONS OF LAW
1. The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures" by the Government. "[A] search conducted without a warrant issued upon probable cause is per se unreasonable subject to only a few specifically established and well-defined exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Where no probable cause and no warrant exist for a subsequent search, suppression of the evidence is required. See United States v. Roberson, 90 F.3d 75 (3d Cir. 1996).
2. As a general rule, the burden of proof is on the defendant who seeks to suppress evidence. See United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). However, once the defendant has established that the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable. See id.
3. The probable cause to conduct a search may arise during the course of a Terry investigative detention. See United States v. McGlory, 968 F.2d 309, 343 (3d Cir. 1992). In Terry v. Ohio, the United States Supreme Court determined that a police officer is permitted to stop and briefly detain an individual for investigatory purposes if the officer has a reasonable suspicion that criminal activity may be afoot. See 392 U.S. 1, 30 (1968). As part of the investigatory stop, the officer is entitled, for the protection of himself and others in the area, to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. See id.
4. Moreover, in investigative stops involving persons in vehicles, the officer is entitled to a limited search of the passenger compartment of a vehicle if the officer believes that the person is dangerous and may gain immediate control of weapons. See Michigan v. Long, 463 U.S. 1032, 1050 (1983). "If, while conducting a legitimate Terry search of the interior of the automobile, the officer should . . . discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances." Id.
5. In evaluating the justification for a Terry stop, a court must consider the "totality of the circumstances." United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000). "[T]he determination of reasonable suspicion must be based in common sense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125 (2000). In addition, deference is given to the officer's conclusions, based on the officer's experience. See United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998).
6. Stopping a car and detaining its occupants is a seizure under the Fourth Amendment. See United States v. Hensley, 469 U.S. 221, 226 (1985); Johnson, 63 F.3d at 245.
7. Probable cause for a warrantless arrest exists when, "at the time of the arrest, the facts and circumstances within the [arresting] officers' knowledge are `sufficient to warrant a prudent man believing that the [suspect] has committed or was committing an offense.'" United States v. Glasser, 750 F.2d 1197, 1205 (3d Cir. 1984) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)); United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990).
8. A police officer may rely on the representations of other officers when making an arrest as long as the officers requesting assistance have sufficient information to show probable cause.See Whiteley v. Warden, 401 U.S. 560, 568 (1971); United States v. Coward, 296 F.2d 176, 179 (3d Cir. 2002).
9. Based on the information given to them by Officer Golphin, Officer Davila and Sgt. Brown had probable cause to stop the Acura.
10. As Officer Davila approached the passenger side of the Acura, he observed Crittenton make a shoving motion to his right side with a baggie. Officer Golphin had just described an alleged drug transaction involving the vehicle and the driver placing a gun in the trunk. Based on Crittenton's movements and based on Officer Davila's experience as a police officer, Officer Davila had reasonable suspicion that criminal activity was afoot and, therefore, was justified in ordering Crittenton out of the Acura.
11. Under Terry and Long, Officer Davila was entitled to conduct a limited search for weapons in the vehicle and to seize the plastic baggie from the passenger door compartment of the Acura after it was stopped on 52nd Street.
12. Under the totality of the circumstances, Officer Davila also had probable cause to arrest Crittenton.
13. Sgt. Brown approached the driver side of the vehicle, removed Pryor from the car, and patted him down, recovering a large amount of cash and a cell phone. Based on Officer Golphin's observations, there was probable cause to arrest Pryor.
14. Because probable cause existed to stop the vehicle and arrest Defendants, the Officers did not violate Defendants' Fourth Amendment rights.
15. The Government contends that Defendants lack standing to object to the search of the Acura, conducted pursuant to a warrant, because the car was registered to Akeia Demota.
16. The Fourth Amendment right to be free from unreasonable searches and seizures is a personal right and a defendant must establish standing in order to assert that right. See United States v. Padilla, 508 U.S. 77, 81-82 (1993). The burden of establishing standing to raise a Fourth Amendment challenge rests with the defendant. See United States v. Salvucci, 448 U.S. 84, 86-95 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978).
17. In order to establish standing, an individual challenging a search must have a reasonable expectation of privacy in the property searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-06 (1980). As our Court of Appeals has explained, "whether the driver of a car has the reasonable expectation of privacy necessary to show Fourth Amendment standing is a fact-bound question dependent on the strength of his interest in the car and the nature of his control over it."United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000).
18. It is not necessary that the defendant seeking to establish standing own the automobile at issue. See id. However, the defendant must demonstrate that there is "clear evidence of continuing possession and control, as well as no evidence that the driver obtained the car illegitimately." Id. at 443; see also United States v. Ryan, 128 F. Supp.2d 232, 235 (E.D. Pa. 2000).
19. The record before the Court with respect to the motion to suppress contains little information concerning Pryor's expectations of privacy in the Acura. The only mention of who owned or possessed the vehicle came in Agent Vitzhum's testimony that the Bureau of Motor Vehicle record shows that the vehicle was titled to Akeia Demota. The police radio dispatch determined that the vehicle was not stolen, and there is no evidence that Pryor obtained the car illegitimately. Moreover, Officer Golphin testified that he saw Pryor open the trunk. Under the circumstances, and absent evidence to the contrary, the Court concludes that Pryor has met his burden of demonstrating Fourth Amendment standing to challenge the search of the vehicle pursuant to a warrant.
20. The Court also concludes that Defendant Crittenton, as a passenger in the Acura, has no standing to challenge the search of the vehicle. "[A] passenger in a car that he neither owns nor leases typically has no standing to challenge a search of the car." Baker, 221 F.3d at 441-42. As the Supreme Court explained in Rakas, 439 U.S. at 133-34, there is no legitimacy to a defendant's expectations of privacy where the area searched is in the control of a third party. It reiterated, "Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted."Id.
21. Officer Kelly executed a search warrant for the vehicle a few hours after Defendants' arrest.
22. Probable cause to search exists if, under the totality of the circumstances, "including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213 (1983). Direct evidence is not required for the issuance of a warrant. United States v. Conley, 4 F.3d 1200, 1207 (3d Cir. 1993). Instead, probable cause can be inferred by "considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide the fruits of his crime." United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (citations omitted).
23. In his affidavit to obtain the search warrant, Officer Kelly set forth the observations of Officers Golphin and Davila. Officer Golphin observed Pryor conduct what appeared to be a narcotics transaction from the vehicle, remove what appeared to be narcotics from the trunk of the Acura, and place a handgun into the trunk of the Acura. Officer Davila observed Crittenton making a shoving motion into the right side of the Acura and subsequently seized a baggie of narcotics from an open compartment in the passenger door. Under the circumstances, the Officers had reason to believe that the vehicle contained evidence of drug trafficking and the handgun. The search warrant set forth probable cause to search the vehicle. Officer Kelly's search of the Acura was lawful and did not violate the Fourth Amendment rights of Defendant Pryor.