United States District Court, W.D. Pennsylvania
September 13, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Findings of Fact
1. On February 10, 2005, City of Pittsburgh Police Officers
Robert Pires (Officer Pires) and Robert Kavals (Officer Kavals)
were working in plain clothes capacity and driving an unmarked
car in the Homewood section of the City of Pittsburgh.
2. Because the Homewood section of Pittsburgh is a high crime
and drug trafficking area, Officer Pires and Kavals were
dispatched to that area, where their routine patrol focused on
narcotics, guns and other types of violations.
3. Officer Kavals has nine years of experience as a City of
Pittsburgh Police Officer. In his nine years as a police officer,
Kavals has made approximately 300 drug arrests, with over 80%
involving crack cocaine.
4. Officer Pires has twenty-three years of experience as a City
of Pittsburgh Police Officer, has worked as a narcotics detective
for eleven years, and has been involved in several thousand drug
arrests, including those involving crack cocaine.
5. On the evening of February 9, 2005, Bryan Otic Mickens
(Mickens) received a telephone call from defendant to inquire
about Mickens giving him a ride to Westmoreland County.
6. At approximately 12:18 a.m., Mickens was driving a maroon
Oldsmobile with defendant in the front passenger seat and Anthony
Giles (Giles) in the rear passenger seat.
7. At that same time, Officers Kavals and Pires were traveling
south on Brushton Avenue when they observed a maroon Oldsmobile
sedan in front of them that failed to stop at a stop sign posted
at the intersection of Brushton Avenue and Monticello
8. The offices continued to follow the Oldsmobile, which
stopped at the next posted stop sign beyond the intersection of
Brushton Avenue and Monticello Street. The officer then observed
the Oldsmobile's vehicle registration sticker, which showed an
expired registration of January 2005.
9. The officers then continued to follow the Oldsmobile for
approximately two to three minutes, during which time Officer
Pires contacted the City of Pittsburgh Police indexing with the
vehicle registration information, which confirmed that the
vehicle was registered to Mickens and that the registration
expired in January 2005.*fn2
10. Meanwhile, Mickens made a left turn onto Frankstown Avenue
off of Brushton, continued eastbound away from the center of
Homewood, made a right turn onto Tokay Street, and made a left
turn onto Frankstown Avenue. 11. "Failure to Stop at a Posted Stop Sign" and "Driving an
Unregistered Vehicle" are violations of the Pennsylvania Motor
Vehicle Code at 75 Pa.C.S. § 3323(b) and 75 Pa.C.S. § 1301(a),
12. At approximately 12:21 a.m., the officers initiated a
traffic stop of the Oldsmobile in the area of 8326 Frankstown
13. Upon stopping the Oldsmobile, the officers put a call out
over the police radio that a traffic stop was being conducted
involving more occupants in the stopped vehicle than the number
of police officers on the scene.
14. Officer Pires exited the passenger side of the blue Lumina
and approached the driver's side of the Oldsmobile. He requested
that Mickens, the driver of the vehicle, turn off his engine, and
15. Officer Kavals remained in the vehicle and once Officer
Pires signaled that the vehicle had been turned off, Officer
Kavals then approached the passenger side of the vehicle.
16. The area in front of 8326 Frankstown Road was illuminated
with street lights, and additionally, Officer Pires shone his
flashlight into the interior of the Oldsmobile.
17. Officer Pires asked Mickens for his license and
registration, which he gave to Pires. As Officer Pires spoke with
Mickens, defendant leaned forward while watching Pires.
18. Meanwhile, Officer Kavals was on the passenger's side of
the vehicle, and while Officer Pires told Mickens that he was
being pulled over for failure to stop at a stop sign and for an
expired registration, Kavals shone his flashlight into the
passenger compartment, specifically on defendant's hands, as it
was his practice to watch the hands of a car's occupants to
identify any potential threat to the safety of the officers. 19. From his vantage point outside the car, Officer Kavals was
able to observe the defendant and his actions.
20. Using his flashlight to illuminate defendant's hands,
Officer Kavals observed defendant put two clear plastic sandwich
bags containing large chunks of a white substance into a red
McDonald's french fry container. The chunks were approximately
the size of a racquetball.
21. Officer Kavals then observed defendant place the french fry
container into a McDonald's bag and drop it on the floor.
(According to Mickens, defendant had the McDonald's bag with him
when he entered the vehicle).
22. After observing defendant's actions, Officer Kavals waited
for backup to arrive. Soon thereafter, City of Pittsburgh Police
Narcotics and Vice Sergeant Jason Snyder and Detectives Edward
Fallert and Joseph Lewis arrived at the scene.
23. Detective Fallert walked toward the driver's side and
Detective Lewis and Sergeant Snyder approached on the passenger
24. Officer Kavals apprised the responding officers of the
situation and of the defendant's possession of the crack cocaine.
Kavals then asked defendant to step out of the vehicle, at which
time he was placed under arrest and handcuffed.
25. Detective Lewis searched defendant incident to arrest and
recovered several items, including a small clear plastic baggie
containing 1.716 grams of crack cocaine, two cellular phones, and
a digital scale with .051 grams of crack cocaine residue.
26. Sergeant Snyder then searched the interior of the vehicle
and recovered the McDonald's bag from the car's front passenger's
side floor, which contained two clear plastic bags of crack
cocaine (27.6 grams and 21.38 grams) and one clear plastic bag of
powder cocaine (18.12 grams).
27. During the search of defendant and the vehicle, Officer
Pires asked Mickens to step out of the vehicle and he performed a
pat down search. Mickens was not handcuffed then or at any time
during the traffic stop. Although Mickens did not receive a
written warning, he was given a verbal warning about the stop
sign and expired registration.
28. The defendant was then transported to the Allegheny County
Jail by Pittsburgh Police Officer Kenney and Ross.
29. During defendant's processing at the jail, Corrections
Officer John Colbert told the defendant to empty his pockets.
When the officer removed an additional clear plastic baggie
containing 25.40 grams of crack cocaine from defendant's right
front jacket pocket, defendant stated, "that's not my ounce." Tr.
II. Conclusions of Law
A. Vehicle Stop
1. The United States Supreme Court has held that "the decision
to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred."
Whren v. United States, 517 U.S. 806, 810 (1996), citing
Delaware v. Prouse, 440 U.S. 648, 659 (1979).
2. Because this Court has found that Officers Pires and Kavals
witnessed Mickens violating two traffic laws under the
Pennsylvania Motor Vehicle Code, (stop sign violation and driving
an unregistered vehicle), Officers Pires and Kavals possessed the
requisite probable cause to believe that a traffic violation had
3. Accordingly, the stop of Mickens on October 10, 2004 was
supported by probable cause and was therefore constitutionally permissible.
B. Arrest of Defendant
1. Based upon the facts set forth hereinabove, including that
Officer Kavals witnessed defendant stuffing the McDonald's bag
with what appeared to be crack cocaine, the Pittsburgh Police
Officer possessed probable cause to arrest the defendant.
2. Probable cause exists whenever reasonably trustworthy
information or circumstances within a police's officer knowledge
are sufficient to warrant a prudent person to conclude that an
offense has been committed by the person being arrested. Beck v.
State of Ohio, 379 U.S. 89, 91 (1964). The validity of an arrest
is determined by the law of the state where the arrest occurred.
Ker v. California, 374 U.S. 23, 37 (1963).
3. "The determination of whether probable cause exists for a
warrantless arrest is fundamentally a factual analysis which that
be performed by the officers at the scene." United States v.
Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984). It is this Court's
duty to determine whether the objective facts available to these
officers at the time of defendant's arrest were sufficient to
justify a reasonable belief that an offense was being committed.
4. This Court finds that Officer Kavals possessed the requisite
"reasonably trustworthy information" to conclude that a drug
offense had been committed by defendant, and accordingly, Officer
Kavals properly placed defendant under arrest. Beck,
379 U.S. at 91.
C. The Vehicle Search
1. The general rule is that searches conducted outside the
judicial process, without prior approval by a judge or
magistrate, are per se unreasonable under the Fourth Amendment.
California v. Acevedo, 500 U.S. 565, 580 (1991). 2. There are, however, exceptions to that rule. One
well-established exception, entitled the "automobile exception,"
provides that the police may conduct a warrantless search of a
car, provided that they have probable cause to believe that the
vehicle contains evidence of criminal activity. Carroll v.
United States, 267 U.S. 132, 158-59 (1925).
3. The probable cause requirement is met, where, as here, the
police officer has probable cause to believe that there is
contraband inside. United States v. Burton, 288 F. 3d 91,
100-101 (3d Cir.), cert. denied, 537 U.S. 1039 (2002).
4. Here, the search of the subject vehicle (and defendant's
person) was constitutionally permissible on the basis of the
automobile exception. As the United States Supreme Court has
explained, "the scope of the warrantless search authorized by
[this] exception is no broader and no narrower than a magistrate
could legitimately authorize by warrant. If probable cause
justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that may
conceal the object of the search." United States v. Ross,
456 U.S. 798, 825 (1982).
5. Therefore, even without a warrant, Sergeant Snyder's search
of the McDonald's bag on the front passenger side floor in the
car, and seizure of the crack cocaine, was constitutionally
permissible, based on Officer Kaval's observation of the
defendant in possession of the contraband.
6. In addition to being a constitutionally valid search,
pursuant to the automobile exception, the search of the
defendant's person, and the subject vehicle, was a lawful search
incident to a valid arrest. Thornton v. United States,
541 U.S. 615 (2004); Chimel v. California, 395 U.S. 752 (1969). 7. Accordingly, the evidence recovered pursuant to the search
of defendant's person and the vehicle is admissible, and
therefore, will not be suppressed.
D. Defendant's Statement at the Allegheny County Jail
1. Miranda requires that an individual be informed of his
rights by the police when both "custody" and "interrogation" are
present. Miranda v. Arizona, 384 U.S. 436 (1966).
2. "Interrogation" includes words or actions on the part of the
police that the police should know are reasonably likely to
elicit an incriminating response from the suspect. Rhode Island
v. Innis, 446 U.S. 291, 301 (1980).
3. In United States v. Benton, the United States Court of
Appeals for the Third Circuit held that a police officer's act of
telling a defendant, who was in custody, that he would be charged
with a crime and that the police had evidence linking him to a
weapon did not constitute custodial interrogation necessitating
Miranda warnings. United States v. Benton, 996 F.2d 642, 643
(3d Cir. 1993).
4. Guided by Benton, this Court also finds that although
defendant was in custody, he was not subject to police
interrogation, or its functional equivalent and therefore, his
statement that it "wasn't [his] ounce" was a voluntary statement
in response to the recovery of the baggie of crack cocaine
discovered in his jacket during his processing. Accordingly,
defendant's statement will not be suppressed.*fn3 III. Conclusion
For the reasons set forth hereinabove, defendant's motion to
suppress physical evidence (doc. no. 23) will be DENIED. An
appropriate order follows. ORDER OF COURT
For the reasons set forth in the accompanying findings of fact
and conclusions of law, IT IS HEREBY ORDERED that defendant's
motion to suppress physical evidence (document no. 23) is
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