filed: August 16, 1995; As Corrected August 21, 1995.
Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Crim. No. 1:CR-94-145-1).
Before: Stapleton, Hutchinson and Seitz, Circuit Judges.
Paul N. Johnson ("Defendant") was indicted by a federal grand jury for conspiracy to distribute narcotics, see 21 U.S.C. § 846, possession and distribution of narcotics, in violation of 21 U.S.C. § 841, and related firearms offenses, see 18 U.S.C. §§ 922(g), 924(a)(2), (c)(1), (c)(2). The government appeals here from an order of the district court granting Defendant's pretrial motion to suppress contraband seized by the Pennsylvania State Police during a vehicle search. The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3731. The trial has been stayed pending the Disposition of this appeal.
The historic facts are taken from the memorandum decision filed by the district court, see FED. R. CRIM. P. 12(e), after the hearing on Defendant's motion to suppress the seized materials.
A Pennsylvania State Trooper, while following a vehicle traveling on Interstate 78 toward Harrisburg and driven by Defendant, noticed "several large objects," which appeared to be air fresheners, hanging from its inside rearview mirror. Because he believed the hanging objects constituted a violation of the Pennsylvania Vehicle Code, see 75 PA. CONS. STAT. ANN. § 4524(c) (Supp. 1994),*fn1 the trooper engaged his overhead lights and signaled for the vehicle to pull to the side of the road.
After both vehicles stopped, the trooper asked Defendant to produce his driver's license and automobile registration card. Defendant produced a South Carolina driver's license bearing the name "Tracy Lamar Washington." Although he was unable to produce an automobile registration card, a violation of the Pennsylvania Vehicle Code, see 75 PA. CONS. STAT. ANN. § 1311(b) (Supp. 1994), Defendant told the trooper that he owned the vehicle. See Appendix at A60-A61. At that point, the trooper went to his patrol car and had the police dispatcher run a check on the vehicle's license number.
While waiting for the vehicle check to be completed, the trooper spoke separately with Defendant and the other occupants of the vehicle. According to the trooper, during these conversations Defendant as well as the passengers seemed "unusually" and "exceptionally" nervous and gave the trooper conflicting statements about the origin and the destination of their trip. Although Defendant knew the name of one of the passengers, he could identify another one only as "T." The trooper testified that the circumstances caused him to suspect that there were narcotics or contraband in the vehicle.
The trooper asked Defendant whether there was anything illegal in the vehicle, and Defendant replied in the negative. The trooper then asked Defendant for his consent to search the car and presented him with a consent form to read and sign. Although Defendant would not sign the form, the trooper testified that he orally consented to the search. In the search that followed, the trooper discovered one-half pound of marijuana, one and one-half ounces of cocaine, one ounce of a substance often used to "cut" cocaine, and a digital scale. At that point, the trooper read the adult occupants of the vehicle their Miranda rights, then placed them under arrest, and seized the contraband.
Defendant was first charged in state court with a number of violations under the Pennsylvania Crimes Code, the Drug Code, and the Vehicle Code. He, thereafter, filed a pretrial motion to suppress the seized drugs and other contraband. The Court of Common Pleas for Berks County, Pennsylvania suppressed the seized materials found in the vehicle because it concluded that they were obtained during an unlawful search. That action was later nolle prossed. See id. at A71.
Defendant was also charged in the district court with federal narcotics and firearms violations. Again, he moved to suppress the same materials obtained by the trooper following the traffic stop. Thereafter, the district court conducted a pretrial suppression hearing and concluded that the traffic stop was used by the trooper as a pretext, that is, a legal justification for an otherwise unconstitutional vehicle stop based on suspicion of narcotics possession. See United States v. Johnson, No. 1:CR-94-145-01, slip op. at 6 (M.D. Pa. Oct. 24, 1994) ("Mem. Op."). As a result, the court found ...