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September 16, 1975

In the Matter of the Application of THEODORE JAMES SANTOS, Jr.
EDGAR B. BAYLEY, Assistant District Attorney, Cumberland County, Pa. In the Matter of the Application of PAUL RICHARD, a/k/a RICHARD ANTHONY HARRIS v. EDGAR B. BAYLEY, Assistant District Attorney, Cumberland County, Pa.

The opinion of the court was delivered by: HERMAN

 This case is before the court on petitioners' applications 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 unlawful possession with intent to deliver a Schedule I controlled substance; to wit, 225 pounds of marijuana, in violation of Section 13(a)(30) of the Controlled Substance, Drug Device and Cosmetic Act of 1972, No. 64, P.L. 233, 35 P.S. 780.113(a)(30), before Judge Weidner in the Court of Common Pleas of Cumberland County, Pennsylvania. They made a timely but unsuccessful motion for suppression 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. Petitioners' motions in arrest of judgment and for a new trial were denied, and on appeal the Superior Court of Pennsylvania 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, defendant 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 gauge pump shotgun, and instructed the occupants of the van to get out and "spread-eagle" against the van. Trooper Seiler conducted a pat-down search while Trooper Geary covered the defendants with his carbine. When the pat-down search revealed that the defendants were unarmed the troopers returned their weapons to their cars.

 While Trooper Seiler conducted a radio check on defendant Santos' vehicle registration and the drivers' licenses of both defendants, Trooper Geary gave the defendants their Miranda warnings and ascertained that they understood 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."

 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 warrant from a district magistrate; that under this procedure the troopers would be required to swear out a complaint for a search warrant stating probable cause to believe 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 marijuana 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 defendants, to impound their vehicle or to obtain a search warrant. In addition, it was further stated that the defendants had an absolute right to refuse to permit the search. Defendants 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. 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 unlocked the combination lock and opened the suitcase, which was filled with marijuana packaged in large bundles. Defendants 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 the spare tire compartment. 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 attorneys.

 The defendants were subsequently transported by the troopers to the district magistrate's office where formal charges were made. While en route, Trooper Seiler initiated a conversation with Trooper Geary, both of whom were in the front seat, regarding a recent television program dealing with the smuggling of marijuana into the United States from Mexico. Upon overhearing this conversation, Richard, who was sitting with Santos in the back seat, stated, "If you're ever in California and want marijuana, 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 volunteered at this time, "It's mine." Trooper Geary thereafter continued the questioning of the petitioners in order to obtain more information. Subsequently, at the county prison, defendant Santos stated that he was assisting defendant Richard in transporting the marijuana from California 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 *fn1" or raise issues again which were determined on direct appeal. Recent cases have consistently 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 STATES ex rel. SCHULTZ v. BRIERLY, 449 F.2d 1286, 1287 (3d 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, 73 S. Ct. 397 (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, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), for their contention that a writ of habeas corpus should be issued discharging petitioners from custody on the grounds that the marijuana in the present case was seized as a result of a search illegal under the Fourth Amendment and was therefore inadmissible under the exclusionary rule announced in WONG SUN v. UNITED STATES, 371 U.S. 471, 9 L Ed 2d 441, 83 S. Ct. 407 (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 application 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 exclusionary rule established by the court in SILVERTHORNE LUMBER CO. v. UNITED STATES, 251 U.S. 385, 64 L Ed 319, 40 S. Ct. 182 (1920), and NARDONE v. UNITED STATES, 308 U.S. 338, 84 L Ed 307, 60 S. Ct. 266 (1939), *fn2" the WONG SUN Court recognized that not all evidence is "fruit of the poisonous tree" simply because it could not have come to light but for the illegal 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 illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint'. . . ." WONG SUN, supra, at 455. Accordingly, where a statement is the product of an intervening independent act of a free will and such is "sufficiently 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 obtained 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 defendant was arrested outside his apartment without probable cause and without a warrant during an investigation of a murder which had occurred a week earlier. After having been driven to the station-house, defendant was taken to the interrogation room, given his MIRANDA warnings and questioned concerning the murder under investigation. 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 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 Amendments. 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 between the illegality of the arrest and any subsequent confessions. The MIRANDA warnings are only a procedural safeguard employed to protect Fifth Amendment rights, specifically the Fifth Amendment guarantee against ...

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