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COMMONWEALTH v. RICHARD ET AL. (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
RICHARD ET AL., APPELLANTS



Appeals from judgments of sentence of Court of Common Pleas of Cumberland County, Dec. T., 1972, No. 252, in case of Commonwealth of Pennsylvania v. Paul Richard a/k/a Richard Anthony Harris and Theodore James Santos, Jr.

COUNSEL

Richard C. Snelbaker, with him Martson and Snelbaker, for appellant, at No. 983.

Arthur L. Goldberg, with him Goldberg, Evans & Katzman, for appellant, at No. 984.

Kevin A. Hess, with him Edgar B. Bayley, Jr., First Assistant District Attorney, and Harold E. Sheely, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Jacobs, J., concurs in result. Dissenting Opinion by Hoffman, J., at No. 984. Concurring Opinion by Spaeth, J.

Author: Cercone

[ 233 Pa. Super. Page 257]

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

The evidence in the instant case, cast in the light most favorable to the Commonwealth, is as follows: On November 16, 1972, State Trooper Max Seiler received a radio broadcast to the effect that a white International Travelall, California registration SZH992, with two white male occupants, had entered the Turnpike at Breezewood carrying a large quantity of marijuana. Trooper Seiler, who was in the vicinity, responded to the call and soon sighted the vehicle heading east. After calling for assistance, 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 signaled 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 "spread eagle" against the van. After the "patdown" proved that the appellants were unarmed, the troopers returned their weapons to their cars.

[ 233 Pa. Super. Page 258]

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 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 ascertained that they understood them. He then advised appellants that in Pennsylvania they were not required to consent 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 appellants consented in writing. Both Santos and Richard then signed a handwritten consent granting the troopers permission 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 mattress and blankets. Santos then said, "where would you like to start;" and, Trooper Seiler selected one of the suitcases. 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

[ 233 Pa. Super. Page 259]

    unrolling the newspaper, discovered a quantity of marijuana. Undaunted, 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 suitcase which was filled with marijuana packaged in large bundles. Appellants were then handcuffed and taken to the local State Police barracks. A subsequent search revealed 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 flooring. In all, appellants had been transporting more than 225 pounds of the contraband.

At the suppression hearing appellant Santos corroborated 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 impound the van and get a search warrant. 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.

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,*fn1 we are left with two hurdles that the

[ 233 Pa. Super. Page 260]

Commonwealth must surmount in order to justify the search of the van and the seizure of the marijuana: (1) Did the appellants voluntarily consent to the search; and (2) Did the illegal stopping or arrest of the appellants automatically render the marijuana inadmissible as "fruit of the poisonous tree."

[ 233 Pa. Super. Page ]

Although the lower court determined that appellants were under arrest from the moment the officers ordered them to "spread eagle," 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 question of fact to be determined in light of all the circumstances." This rule was cited and quoted with approval in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Cf., 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 ...


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