United States District Court, W.D. Pennsylvania
September 14, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: TERRENCE F. McVERRY, District Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF COURT
Defendant, Edwin Gosnell, was indicted by a Grand Jury on
January 13, 2005, and charged with 131 counts of illegal
distribution of controlled drugs in his capacity as a registered
On June 13, 2005, Defendant, through counsel, filed several
pretrial motions, including the instant MOTION TO SUPPRESS
STATEMENTS BY DEFENDANT AND PHYSICAL EVIDENCE (Document 15).
On July 29, 2005, the Court conducted an evidentiary hearing on
the Motion to Suppress. At the hearing, all parties were
represented by counsel who presented and argued the issues
skillfully and effectively. Louis Colosimo, an investigator with
the U.S. Drug Enforcement Agency, testified on behalf of the
government. No other witnesses testified.
The central issues at the hearing were whether Defendant
voluntarily consented to the search of his vehicle and residence
and whether Defendant voluntarily gave statements, both oral and
written, during his interview.
At the conclusion of the hearing, counsel for Defendant
requested additional time within which to file a supplemental
brief in support of the motion to suppress. The request was
granted by the Court and the final deadline for filing a
supplemental brief was August 12, 2005. However, on or about August 16, 2005, counsel for Defendant
advised the Court that she would not be filing a supplemental
A transcript of the testimony adduced at the suppression
hearing has not been transcribed to date; however, the Court is
prepared to issue its Findings of Fact and Conclusions of Law
based upon its notes, recollection, and hearing exhibits.
The Court will discuss primarily those basic facts which are
relevant to the motion and except as otherwise indicated the
following facts are basically unrebutted. Based on the testimony
and evidence presented at the suppression hearing and the
applicable law, the Court enters the following Findings of Fact
and Conclusions of Law:
FINDINGS OF FACT
1. On March 19, 2003, Louis Colosimo ("Colosimo"), an
investigator with the U.S. Drug Enforcement Agency ("DEA") was
contacted by Debbie Healy ("Healy"), loss prevention officer for
Eckerd Drug Store ("Eckerd"). Healy informed Colosimo that an
internal investigation indicated that Defendant, Edwin Gosnell,
was filling prescriptions for Oxycodone that were fraudulent.
2. On March 21, 2003, Colosimo met Edward Cartwright
("Cartwright"), an officer with the Pennsylvania Office of
Attorney General, Bureau of Narcotic Investigation, in the
parking lot of the Eckerd store where Defendant was employed as a
pharmacist. The purpose of the meeting was to interview Defendant
when his shift ended. Defendant did not know the officers were
coming. Colosimo may have arrived at the parking lot at
approximately 11:30 a.m. or noon; he thinks Cartwright arrived
around 9:30 a.m. 3. Defendant's shift ended at approximately 2:00 P.M. Colosimo
and Cartwright were in a parked unmarked vehicle waiting for him
to come out of the store. At approximately 2:15 p.m., Defendant
approached his car; the officers then got out of their unmarked
car, approached Defendant, identified themselves, and told him
that they wanted to speak with him. Agent Cartwright asked
Defendant if he had a weapon. Defendant replied in the
affirmative as he had a 9mm handgun in his front pants pocket.
Agent Cartwright then secured the weapon.
4. Cartwright then proceeded to read to Defendant his Miranda
rights. Defendant verbally waived his rights and agreed to
cooperate in the investigation. The Miranda warning was given
orally in English and Defendant appeared to fully understand it.
Colosimo testified that Defendant appeared to be oriented as to
time and place and exhibited no signs of confusion or impairment.
5. Colosimo then asked Defendant for his consent to search his
vehicle, to which Defendant agreed. Defendant signed a Consent to
Search form which authorized Cartwright to search his person, his
car (a 1999 Chevrolet Monte Carlo) and his residence located at
5978 Dublin Road, Bethel Park, PA. See Consent to Search,
Exhibit 1. Colosimo testified that Defendant understood that the
Consent to Search authorized Cartwright to conduct a complete
search of his person, vehicle, and residence. Prior to the
execution of the Consent, the only question asked of Defendant
was whether he had a weapon.
6. Defendant was not handcuffed at the time he signed the
Consent to Search and the search had not occurred prior to his
signing the Consent to Search. Colosimo did not have a gun on his
person; Cartwright had a gun, but he never took it out. Colosimo
could not recall whether Cartwright's weapon was visible or whether
Cartwright was wearing a suit jacket. The Consent to Search was
signed by Cartwright and Colosimo as witnesses. No other officers
were in the area. Healy was in the vicinity, but she did not
participate in the search.
7. The search of the car revealed the following: 2 written
prescriptions for a patient named John Linden; a check made out
to cash in the amount of $1000.00, signed by Daniel Dawes, with a
notation on it which stated for "work on house;" and a few other
prescriptions. An overcoat and smock were also in the car. In the
overcoat, two prescription bottles were found; in the smock, a
few tablets of controlled substances were found.
8. Healy was present during the search of the vehicle although
she did not participate in the search. She stood with Defendant
while the search was conducted.
9. Immediately after the completion of the vehicle search,
Colosimo asked if Defendant would answer some questions regarding
the investigation. Defendant agreed, and the Defendant,
accompanied by the officers, walked back into Eckerd and into the
employee break room where the interview took place.
10. Colosimo testified that the break room was located behind
the pharmacy counter and could not be observed from the store. A
table and chairs, a microwave, and snacks were located in the
break room. The break room had two doors, on opposite walls, from
which a person could enter and/or exit.
11. During the interview, Defendant sat in the middle chair at
the table; the officers were seated on either side of him. Both
Cartwright and Colosimo interviewed Defendant. 12. While in the break room, at approximately 3:00 p.m.,
Defendant signed an Office of Attorney General ("OAG") Advice of
Rights and a Waiver of Rights form, in which he acknowledged in
writing that he waived his Miranda rights. See Office of
Attorney General Advice of Rights and Waiver of Rights, Exhibit
2. Defendant was neither handcuffed nor under arrest at the time
he signed the OAG Form. In fact, Colosimo testified that
Cartwright specifically told Defendant that he was not under
arrest and was free to leave at any time.
13. Defendant asked the officers the purpose of the interview.
They responded that he was suspected of selling illegal
prescriptions. Defendant did not ask anything else. The officers
informed Defendant that he could be charged with a criminal
offense if the investigation revealed that Defendant was in fact
selling illegal prescriptions.
14. Colosimo testified that during the interview, Defendant
left the break room unattended to go to the bathroom and was also
given a soft drink at his request. Defendant never indicated to
either officer that he wanted to stop the interview, that he
wanted to talk to an attorney, or that he wanted to leave the
premises. The interview lasted approximately two and a half
15. At approximately 5:40 p.m., Defendant gave the officers a
one page written statement while in the break room.
16. Colosimo testified that Defendant was very cooperative
throughout the interview and did not need to be prompted or
encouraged to cooperate.
17. At the conclusion of the interview, the oficers and
Defendant drove to Defendant's residence. Cartwright conducted a
search in which he seized approximately $6000 cash, prescription bottles, and some loose pills. Defendant
remained at his residence after the search.
18. Defendant was arrested in early 2005 based on the Arrest
Warrant of this Indictment.
CONCLUSIONS OF LAW
1. Initially, the Court observes that the "proponent of a
motion to suppress bears the burden of establishing that his
[constitutional] rights were violated." United States v.
Leveto, 343 F. Supp.2d 434, 441 (W.D. Pa. 2004) (citing to
United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir.
1992)) (Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978)).
2. The burden of proof in a suppression motion is a
preponderance of evidence standard. Leveto,
343 F. Supp.2d at 441-42 (citing United States v. Matlock, 415 U.S. 164, 178 n.
14 (1974)) ("[T]he controlling burden of proof at suppression
hearings should impose no greater burden than proof by a
preponderance of the evidence.").
Consent to Search was Voluntary
3. A search without a warrant can be conducted if, under the
totality of the circumstances, the officers have obtained
voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218
(1973). The test for voluntariness considers "whether, under the
circumstances, the consent was an exercise of free will or
whether the actor's free will `has been overborne and his
capacity for self-determination critically impaired.'" United
States v. Antoon, 933 F.2d 200, 203 (3d Cir.), cert. denied,
502 U.S. 907 (1991) (quoting Schneckloth, 412 U.S. at 225). 4. Courts determine whether consent was voluntary by examining
the totality of the circumstances surrounding the consent,
including the age, education, and intelligence of the person.
United States v. Kim, 27 F.3d 947, 955 (3d Cir. 1994).
5. Applying these principles to the facts of this case, the
Court concludes that Defendant's consent to the search of his car
and residence was voluntary.
6. The Court finds and rules that Defendant did not express any
reservation about signing the consent form. Defendant understood
that the Consent to Search authorized Cartwright to conduct a
complete search of his person, vehicle and residence.
7. Significantly, the record does not show that Defendant's
will was overcome by any coercive tactics of the officers.
Rather, the record reflects that Defendant knowingly and
intelligently executed a comprehensive Consent to Search.
8. The Court finds and rules that the record is devoid of any
evidence which suggests that Defendant did not voluntarily
consent to the search of his car and/or residence.
Statements Were Voluntary
9. It is well-established that law enforcement officers must
administer Miranda warnings whenever a suspect is "taken into
custody or otherwise deprived of his freedom by the authorities
in any significant way and is subjected to questioning." Miranda
v. Arizona, 384 U.S. 436, 478-479 (1966).
10. The Miranda custody test is an objective test; two
discrete inquiries are essential: (1) the circumstances
surrounding the interrogation, and (2) given those circumstances,
whether a reasonable person would have felt free to terminate the
interrogation and leave. Yarborough v. Alvarado, 541 U.S. 652, 663 (2004)
(citing Thompson v. Keohane, 516 U.S. 99, 133 (1995)).
11. As explained by the Court of Appeals for the Third Circuit:
This inquiry requires us to consider the totality of
the circumstances surrounding the interrogation,
which includes examining the events that occurred and
the background, experience, and conduct of the
defendant. Miranda rights will be deemed waived
only where the totality of the circumstances
"reveal[s] both an uncoerced choice and the requisite
level of comprehension.
United States v. Sriyuth, 98 F.3d 739
, 749 (3d Cir. 1996)
(quoting Moran v. Burbine, 475 U.S. 412
, 421) (citations
omitted); see also, Reinert v. Larkins, 379 F.3d 76
12. The totality of the circumstances include: 1) evidence of
police coercion; 2) the length and location of the interrogation;
3) the defendant's maturity, physical condition, mental health
and level of education; 4) whether Miranda warnings were given;
and 5) whether an attorney was present for the interview. United
States v. Swint, 15 F.3d 286, 289 (3d Cir. 1994); see also
United States ex rel. Hayward v. Johnson, 508 F.2d 322, 326 (3d
13. It is the government's burden of proving by a preponderance
of the evidence that defendant's statements were made
voluntarily. Swint, 15 F.3d at 289 (3d Cir. 1994); Arizona v.
Fulminante, 499 U.S. 279, 285-89 (1991).
14. The evidence adduced at the suppression hearing reflects
that Defendant walked on his own accord to the Eckerd break room
without the use of physical force or restraint from the officers.
15. The evidence also reflects that Defendant spoke in a
conversational manner to officers Colosimo and Cartwright and
that Defendant did not object to being questioned by the officers
in the Eckert break room and he did not resist answering the
officers' questions. 16. The undisputed evidence reveals that officers Colosimo and
Cartwright spoke to Defendant in a conversational manner and that
the interview was friendly. Further, Defendant does not contend
that the officers used any psychological ploys or deceptive
stratagems during the interview.
17. The undisputed evidence reveals that Defendant was
permitted to leave the break room alone, and that he never
requested that the interview be stopped or that he be allowed to
consult with an attorney.
18. Defendant was not placed under arrest during questioning or
at the conclusion of the interview. Instead, Defendant returned
to his residence, followed by the officers.
19. This Court has carefully reviewed the entire record and
finds from the totality of the circumstances that Defendant was
not in custody when interviewed by officers Colosimo and
Cartwright on March 21, 2003. Defendant was not handcuffed or
restrained in any manner before, during, or after the interview.
Defendant walked on his own accord to the Eckert break room
without the use of physical force or restraint from the officers.
The officers informed Defendant at the onset of the interview
that he was not in custody, that he was not under arrest, and
that he was free to terminate the interview at any time.
Defendant was allowed to leave the break room unattended. A
reasonable person under the circumstances of the interview would
have felt free to terminate the interview and leave. The Court
expressly finds that Defendant was not in custody during the
interview conducted by officers Colosimo and Cartwright on March
20. Although Defendant was not in custody, the record reflects
that the officers gave Defendant his Miranda warnings, which he
clearly understood. 21. The Court finds that the statements made by Defendant were
voluntary. Defendant was an adult at the time of the interview.
In addition, Defendant was not under the influence of drugs or
alcohol at the time of questioning, nor did he complain of any
physical or mental disability which would have affected the
voluntariness of his statement. A careful review of the entire
record and the totality of the circumstances clearly supports a
finding that the statement(s) provided by Defendant to officers
Colosimo and Cartwright were voluntary in nature.
22. It is significant to note that the record does not show
that Defendant's will was overcome by any coercive tactics of the
officers. The interview lasted approximately two and a half
hours, and there is no evidence presented which establishes that
the actions of the officers caused Defendant's will to be so
overborne that his decision to speak with law enforcement was the
result of coerced choice. Rather, the record reflects that
Defendant knowingly and intelligently executed a comprehensive
Waiver of Rights. Defendant asked an intelligent question about
the purpose of the interview and was given a truthful answer.
23. The Court finds that the Defendant voluntarily gave his
statements, both verbal and written, to officers Colosimo and
For the reasons hereinabove stated, the Motion to Suppress
(Document No. 15) filed by Defendant will be denied. An
appropriate Order follows. ORDER OF COURT
AND NOW, this 14th day of September, 2005, upon consideration
of the Motion to Suppress filed by Defendant (Document No. 15),
and after an evidentiary hearing, the Court enters the foregoing
Findings of Fact and Conclusions of Law.
NOW THEREFORE, it is hereby ORDERED, ADJUDGED, AND DECREED
that Defendant's Motion to Suppress is DENIED.
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