United States District Court, W.D. Pennsylvania
November 22, 2005.
UNITED STATES OF AMERICA,
CHARLES M. CUMMINGS, JR., Defendant.
The opinion of the court was delivered by: KIM GIBSON, District Judge
MEMORANDUM OPINION and ORDER OF COURT
This case comes before the Court on the Defendant's Motion to
Suppress (Document No. 15), and Brief in Support (Document No.
16), Motion for Early Disclosure of Jencks Materials (Document
No. 17), and Brief in Support (Document No. 18), Motion to
Inspect Jury Selection Materials (Document No. 19), and Brief in
Support (Document No. 20), Motion to Permit Counsel to Submit
Questions on Voir Dire of Prospective Jurors (Document No. 21),
and Brief in Support (Document No. 22) and Motion to Permit
Counsel to Conduct Voir Dire of Prospective Jurors (Document No.
23), and Brief in Support (Document No. 24). The Government filed
an Omnibus Response to Defendant's Pretrial Motions (Document No.
28). The Court held a hearing and received evidence on the
Defendant's Motion to Suppress on October 3, 2005. The parties
submitted the following post-hearing briefs: Brief in Opposition
(Document No. 32) filed by the Government and a Post-Suppression
Hearing Brief filed by the Defendant (Document No. 33).
For the reasons stated herein, the Defendant's Motion to
Suppress is denied. The Defendant's Motions for Early Disclosure
of Jencks Materials and to Permit Counsel to Conduct Voir Dire of Prospective Jurors are also denied. The Defendant's Motion to
Inspect Jury Selection Materials is granted. The Court reserves
ruling upon the Defendant's Motion to Permit Counsel to Submit
Questions on Voir Dire of Prospective Jurors until the
Defendant's counsel has submitted specific questions it wishes to
ask the prospective jurors.
I. MOTION TO SUPPRESS
On October 3, 2005, the Court held a hearing at which time
testimony was received in regard to the Defendant's Motion to
Suppress. The Court's findings of fact are based upon the
testimony and exhibits admitted in that Federal Rule of Criminal
Procedure 12(b)(3)(C) hearing.
In brief, the Defendant moves for the suppression of any
statements made by the Defendant after his "unlawful detention
and/or search or searches" made by the Pennsylvania State Police
as well as the suppression of physical evidence obtained from the
vehicle which the Defendant occupied because of a lack of consent
or probable cause. Defendant's Motion, pp. 2-3. Suffice it to say
that the Government disputes these assertions and argues that the
statements and the seizure of evidence on the evening of October
30, 2004 were proper. See Government's Brief.
The Defendant narrows his argument within his Post-Suppression
Hearing Brief by arguing that at the time of the vehicle stop,
the action of Trooper Richards violated Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) because the
Defendant was essentially in custody and being interrogated
without Miranda warnings being read to him prior to being
questioned about the "crack" pipe and whether or not anything
else was in the vehicle.*fn1 Defendant's Post-Suppression
Hearing Brief, p. 7. The Government responds that the Defendant was not in
custody by being a passenger in a vehicle subject to a "routine
traffic stop" but was in custody only after he displayed to
Trooper Richards a bag containing cocaine. Government's
Post-Hearing Brief, p. 5. Alternatively, the Government argues
the independent source rule, that the Miranda warnings cured
any defect, and the good faith exception to support the arrest of
the Defendant, questioning and seizure of contraband from the
vehicle in which the Defendant was a passenger.
The Government called the only witnesses at the suppression
hearing: Pennsylvania State Troopers Goins and Richards. Based
upon the evidence submitted at that hearing, the Court makes the
following findings of fact and conclusions of law.
FINDINGS OF FACT
1) On October 30, 2004 at approximately 11:50 p.m.
Trooper Goins and Trooper Richards were on duty, in
uniform, and inside a marked state police cruiser
which was being driven by Trooper Goins northbound on
State Route (hereinafter "SR") 219 in order to
respond to an incident in Ogle Township, Somerset
County. Hearing Transcript (hereinafter "HT"), pp. 6,
2) The weather conditions did not include any
precipitation, but it was "windy." HT, pp. 7, 33.
3) After leaving the "last Somerset exit" on SR 219,
the Troopers had followed a red 2001 Dodge Ram 1500
4x4 for a "couple of miles" and had noticed its tires
touching both the dotted white center line and the white fog line as it
weaved within its lane, but the Troopers did not find
this to be a reason to stop this vehicle because they
attributed such movement to the wind conditions of
that evening. HT, p. 7.
4) Trooper Goins then drove into the passing lane in
order to attempt to pass the Dodge Ram on its
driver's side and as the state police cruiser was
situated about halfway alongside the Dodge Ram, the
Dodge Ram made an abrupt move to the left crossing
the dotted white center line with its driver's side
tires resulting in "20-25 percent of the vehicle"
being in the state police cruiser's lane of traffic
and causing Trooper Richards to lean to the left of
his passenger seat in expectation of an impact. HT,
pp. 8, 33.
5) As the driver, Trooper Goins "dropped back behind"
the Dodge Ram by several car lengths and observed it
cross the dotted white center line three more times
with its driver's side tires and once cross the white
fog line with "20-25 percent of the vehicle" crossing
that line over the course of one mile. HT, pp. 8-9,
6) Witnessing the traffic violations being committed
by the driver of the Dodge Ram and suspecting that
the driver was also in violation of Pennsylvania's
law prohibiting driving under the influence of
alcohol or a controlled substance, the troopers
initiated a traffic stop of the Dodge Ram by
activating the state police cruiser's emergency
lights. HT, pp. 9-11, 19, 34.
7) The Dodge Ram drove forward for another 2/10ths of
a mile after the emergency lights of the police
cruiser were activated but finally came to a stop;
there were no highway lights, just the emergency
lights and the headlights of the state police cruiser
that provided any illumination at the scene of the stop. HT, pp.
8) Thereafter, Trooper Goins approached the driver's
side of the Dodge Ram as the "contact officer"
encountering Megan Cummings in the driver's seat
while Trooper Richards, as "the security officer"
approached the passenger side of the Dodge Ram
encountering the Defendant seated in the passenger's
seat; both Troopers were shining flashlights within
the cab of the vehicle. HT, pp. 11-12, 13, 19, 26,
9) At the time Trooper Richards approached the
passenger side of the Dodge Ram, the Defendant was
not "free to leave" "because he's a passenger and . . .
[the driver was being questioned]." HT, pp. 26-27,
10) Trooper Goins found Ms. Cummings to be physically
impaired based upon her appearance and speech and he
requested her driver's license, registration and
proof of insurance; Ms. Cummings made a remark to the
Defendant and the Defendant retrieved "an envelope"
from the glove compartment quickly opening and
closing the compartment door and handed the envelope
to Ms. Cummings. HT, pp. 12, 35, 55.
11) The envelope did not contain the paperwork
requested by Trooper Goins so Ms. Cummings handed it
back to the Defendant who then re-opened the glove
compartment removing a plastic baggie containing an
item and placing it between his legs and placed
documents on his lap hunching over them as he
searched through the documents and finally handed Ms.
Cummings another document. HT, pp. 12-13, 36, 55-56.
12) The Defendant then placed the remaining paperwork
back into the glove compartment, but left the plastic
baggie between his legs while "leaning forward
somewhat" requiring Trooper Richard to stand on his "tiptoes to look down
at it." HT, p. 36.
13) Trooper Richards, as the "security officer" was
responsible for "maintaining surveillance . . . on
the driver . . . [and] in this case the passenger" to
prevent any harm to his partner or himself. HT, pp.
14) Trooper Richards, noticing the plastic baggie but
not aware of what it contained, inquired of the
Defendant what it was and the Defendant held up the
plastic baggie which contained a "Coke" can with tape
on it and holes punctured in it (hereinafter "Exhibit
1") and handed it to Trooper Richards; Trooper
Richards then asked what it was and the Defendant
responded "I smoke crack with it" and handed to
Trooper Richards. HT, pp. 14, 36-37, 38, 47-48, 49,
15) Trooper Richards then inquired if "there was
anything else in the vehicle that [the troopers]
needed to know about", and in response the Defendant
reached for and produced a plastic sandwich baggie
that appeared to contain cocaine and gave it to
Trooper Richards. HT, pp. 14-15, 39-40, 51, 54.
16) Trooper Richards then "played dumb and asked him
what it was, and [the Defendant] stated it was
`cocaine'" and that it was his cocaine and not Ms.
Cummings's. HT, pp. 40, 45, 51.
17) Trooper Richards then asked the Defendant to exit
the vehicle, secured him in handcuffs and told him he
was being placed under arrest; and both of them then
walked to the rear of the vehicle whereupon Trooper
Goins directed Ms. Cummings to keep her hands on the
steering wheel and then he proceeded to the rear of
the vehicle to assist Trooper Richards. HT, pp. 15, 40-41, 45.
18) The Defendant at this time was handcuffed with
his back facing the vehicle; Trooper Richards
informed Trooper Goins what was in the Defendant's
possession, the Defendant was "Mirandized" by Trooper
Goins to which the Defendant responded that he
understood the warnings while Trooper Richards
performed a pat-down of the Defendant. HT, pp. 16,
19) The Defendant chose to speak to the troopers and
in response to their questioning, the Defendant
indicated that there was cocaine in a piece of
luggage in the truck bed and in the passenger side
door and that a quantity of marijuana was inside a
tin within the cooler in the truck. HT, pp. 17, 41.
20) The troopers consulted with their supervisor and
thereafter the troopers had the Dodge Ram towed and
then applied for and obtained a search warrant for
this vehicle. HT, pp. 17, 41-44.
21) Ms. Cummings was placed under arrest for
suspicion of driving under the influence and after
being "Mirandized" she was questioned regarding what
was in the vehicle to which she responded in a manner
similar to the following: "You got to understand,
he's my father." HT, pp. 17-18.
22) A search of the Dodge Ram pursuant to the search
warrant which had been issued revealed "approximately
100 grams of cocaine, $26,000 in cash and marijuana
and paraphernalia". HT, p. 44. CONCLUSIONS OF LAW
1) "The Fourth and Fourteenth Amendments are
implicated in this case because stopping an
automobile and detaining its occupants constitute a
`seizure' within the meaning of those Amendments,
even though the purpose of the stop is limited and
the resulting detention quite brief." Delaware v.
Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396,
59 L.Ed.2d 660, 667 (1979).
2) "[A] traffic stop significantly curtails the
`freedom of action' of the driver and the passengers,
if any, of the detained vehicle." Berkemer v.
McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 3148,
82 L.Ed.2d 317, 332 (1984).
3) "[T]he usual traffic stop is . . . [more]
analogous to a so-called `Terry stop,' than to a
formal arrest." Berkemer v. McCarty, 468 U.S. 420,
439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334
4) During a Terry stop "the officer may ask the
detainee a moderate number of questions to determine
his identity and to try to obtain information
confirming or dispelling the officer's suspicions"
regarding the detainee, "[b]ut the detainee is not
obliged to respond." Berkemer v. McCarty,
468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334
5) The character of a Terry stop is "nonthreatening"
and as such "persons detained pursuant to such stops are not `in custody' for purpose of
Miranda." Berkemer v. McCarty, 468 U.S. 420, 440,
104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334-335 (1984).
6) A police officer's "unarticulated plan" does not
bear upon the issue of whether an individual has been
taken into custody; to determine if an individual has
been taken into custody, a court must view the
applicable facts based upon what a "reasonable man in
the suspect's position would have understood his
situation" to be. Berkemer v. McCarty,
468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317, 336
(1984) (footnote omitted).
7) Troopers Goins and Richards possessed reasonable
suspicion to conduct a traffic stop of the Dodge Ram
based upon their observation of the operation of that
vehicle which revealed summary traffic violations of
the Pennsylvania Vehicle Code as well as evidence of
a possible violation of Pennsylvania's law
prohibiting driving while under the influence of
alcohol or a controlled substance. See
75 Pa.C.S.A. § 6308(b) (reasonable suspicion required to stop a
vehicle); U.S. v. Hensley, 469 U.S. 221, 226,
105 S.Ct. 675, 679, 83 L.Ed.2d 604, 610(1985) (citing
United States v. Brignoni-Ponce, 422 U.S. 873, 881,
95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 616-617
8) Trooper Richards, acting as the security officer
on the traffic stop in the case sub judice, was
concerned about the possible presence of weapons
within the Dodge Ram, particularly in the possession
of its occupants and to further this goal of officer
safety, Trooper Richards was permitted to ask
questions of the Defendant during the course of this
vehicle stop to ensure that no crime had been or was
being committed as well as to satisfy himself that
the Defendant was not armed with a weapon. Berkemer
v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150,
82 L.Ed.2d 317, 334 (1984); Terry v. Ohio, 392 U.S. 1, 27,
88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968).
9) At the time Trooper Richards inquired as to the
contents of the plastic baggie, the Defendant was not
under arrest; once satisfied that the plastic baggie
did not contain a weapon, but only evidence of the
crime of possession of drug paraphernalia, Trooper
Richards, for the purpose of increasing his and his
partner's safety, asked the Defendant whether there
were other objects in the vehicle he should be
concerned about before he proceeded to arrest the
Defendant for possession of the drug paraphernalia.
10) The Defendant voluntarily responded to Trooper
Richards' question not by words, but through the
action of revealing a separate plastic baggie
containing a white powdery substance, suspected to be
11) Trooper Richards inquired as to what the
substance was and the Defendant voluntarily stated
that it was his cocaine.
12) Satisfied that the Defendant did not possess any
weapons but only contraband, Trooper Richards
requested the Defendant to step out of the vehicle
and at that time placed him under arrest for
possession of the drug paraphernalia and cocaine.
13) The arrest of the Defendant, who was a passenger
of a lawfully stopped vehicle, was permissible
because Trooper Richards possessed probable cause to
arrest the Defendant based upon the admissions of the
Defendant made during the lawful traffic stop.
14) After being properly "Mirandized," the Defendant
waived his Fifth Amendment right to
self-incrimination and stated to the troopers that
the vehicle also contained a quantity of marijuana and two separate quantities of cocaine.
15) The Defendant was not in custody at the time he
commented that he had smoked "crack" using Exhibit 1,
as Trooper Richards' question regarding Exhibit 1 was
in relation to those items exposed in plain view by
the Defendant while searching for the documentation
requested by Trooper Goins, documentation that
related to the initiation of the traffic stop. See
Berkemer v. McCarty, 468 U.S. 420, 439-440,
104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984).
16) The treatment of the Defendant prior to being
requested to exit the vehicle by Trooper Richards was
not such that "render[ed] him `in custody'"
(Berkemer v. McCarty, 468 U.S. 420, 440,
104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 335 (1984)) thus
requiring Trooper Richards to "Mirandize" the
Defendant: Trooper Richards did not converse with the
Defendant or request any action of him prior to his
displaying Exhibit 1 within the trooper's plain view;
the trooper is not alleged to have demonstrated any
show of force to the Defendant; the Defendant did not
request to leave the vehicle and Trooper Richards did
not order the Defendant, as a passenger, to exit the
vehicle (which is permissible based solely upon the
fact he was a passenger pursuant to Maryland v.
Wilson, 519 U.S. 408, 414-415, 117 S.Ct. 882, 886,
137 L.Ed.2d 41, 48 (1997)) prior to the Defendant
displaying Exhibit 1 within the trooper's plain view.
17) Additionally, Trooper Richards' actions of
standing outside the passenger side door cannot be
viewed as a restriction of the Defendant's movement,
as such action is permissible and was done in
furtherance of both troopers' interest in their
safety. United States v. Sowers, 136 F.2d 24, 28 (1st Cir.
1998) (finding that an order to remain within the
stopped vehicle "was not onerous.") (citations
18) Therefore, the statements of the Defendant prior
to his arrest and being removed to the rear of the
stopped vehicle are admissible at the trial of the
Defendant and as a result, any evidence obtained as a
result of the Defendant's pre-arrest statements are
not found to be "fruit of the poisonous tree" and
such evidence is also deemed to be admissible. See
Wong Sun v. United States, 371 U.S. 471,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
II. MOTION FOR EARLY DISCLOSURE OF JENCKS MATERIAL
The Defendant moves for the early disclosure of Jencks
material, specifically disclosure of such material three days
prior to trial in this matter, citing the opinion of Judge Lee in
the case of United States v. MacFarlane, 759 F.Supp. 1163, 1167
(W.D.Pa. 1991), wherein Judge Lee found that production of Jencks
material three days prior to trial was warranted. The reason
cited for the Defendant's request for early production is trial
expediency and effective examination of witnesses. Defendant's
Brief, p. 2. The Government notes that it has no obligation to
provide this material until after the direct examination of its
various witnesses, see FED. R. CRIM. P. 16; 18 U.S.C. § 3500,
but recognizes that under its normal practice such information
will be made available "one to three days prior to the respective
witness's testimony." Government's Brief, p. 21.
The Court notes that its standard criminal pretrial order
encourages early production of Jencks material by the Government
at least three days prior to the commencement of trial, but the
law previously prevented this Court from ordering production of
Jencks material relating to any witness prior to the testimony of
that witness on direct examination. United States v. Murphy,
569 F.2d 771, 773-774 (3rd Cir. 1978).
However, the Court recognizes that the holding in Murphy has
been superseded since the addition of FED. R. CRIM. P. 12(i) in
1983 and the subsequent removal of that provision in 1993 to FED.
R. CRIM. P. 26.2(g) where it provides for the production of
Jencks material in a pretrial suppression hearing as well as in
other pretrial events. See United States v. Rosa, et al.,
891 F.2d 1074, 1077 (3d Cir. 1989). The original text of FED. R.
CRIM. P. 12(i) read: "(i) Production of Statements at Suppression
Hearing. Except as herein provided, rule 26.2 [Jencks Act] shall
apply at a hearing on a motion to suppress evidence under
subdivision (b)(3) of this rule." Id. The Rosa Court was
focused on the issue of Jencks material being used in a
post-trial sentencing hearing, not with regard to production for
general discovery purposes prior to trial or for a pretrial
suppression hearing. Still, the point noted by the Rosa Court
must be considered, but this Court does not believe it requires
production of Jencks material based on what is essentially a
general discovery request based upon considerations of trial
Furthermore, the Court notes that a pretrial suppression
hearing has already occurred before this Court and did not reveal
any request or need for Jencks material,*fn3 so no Jencks
material needs to be produced at this stage of the proceedings
under the Federal Rules of Criminal Procedure. See FED. R.
CRIM. P. 26.2 (g) (limiting production of Jencks material prior
to trial only for purposes of a detention hearing, a preliminary
hearing, and a suppression hearing). Therefore, because the
Defendant's request for Jencks material does not fall within the
list of pretrial events outlined in FED. R. CRIM. P. 26.2(g) for
which Jencks material must be produced, the Defendant's Motion
for Early Disclosure of Jencks Material is denied.
III. MOTION TO INSPECT JURY SELECTION MATERIALS
The Defendant's counsel moves for permission to inspect jury
selection materials in compliance with Local Criminal Rule of
Court 24.1 by agreeing to complete the certification required of
him from that rule. The Government does not object to this
request "to the extent that such inspection is already permitted
under W.D.Pa. LCR 24.1" Government's Response, p. 20. Therefore,
the defense counsel's motion is granted and such materials as are
outlined pursuant to Local Criminal Rule 24.1 shall be provided
to the Defendant's counsel after his compliance with the
requirements of that rule.
IV. MOTION TO PERMIT COUNSEL TO SUBMIT QUESTIONS ON VOIR DIRE
OF PROSPECTIVE JURORS
The Defendant's counsel has moved for permission to submit
questions on voir dire to prospective jurors pursuant to Local
Criminal Rule 24.2. Defendant's Brief, p. 1. The Government does
not generally oppose such a request as such decision is within
the discretion of this Court, but specifically opposes this
Defendant's request as no specific questions were submitted to
the Court so as to facilitate a decision on this motion.
Government's Response, p. 20.
The Court's standard criminal pretrial order permits the
parties to submit voir dire questions to the Court ten days
before the start of the trial that, if permitted by the Court,
would be used to supplement the standard voir dire questioning
conducted of prospective jurors. Therefore, the Court will
reserve ruling upon the Defendant's motion until after the
Defendant has submitted to the Court specific questions requested
to be utilized in the voir dire of prospective jurors in this
case. V. MOTION TO PERMIT COUNSEL TO CONDUCT VOIR DIRE OF
Pursuant to Federal Rule of Criminal Procedure 24, the
Defendant's counsel moves the Court for permission to conduct
voir dire of prospective jurors in this matter in order to craft
questions that are responsive to answers that may be given in
order to determine the presence of any possible bias and to
ensure that the Defendant's challenges for cause and peremptory
challenges are exercised "in a rational fashion." Defendant's
Brief, p. 2. The Government opposes such request in order to curb
any abuse of the voir dire process that may occur. Government's
Response, p. 19.
It is the Court's practice under Rule 24 to conduct the voir
dire itself rather than permit either of the attorneys to examine
any of the prospective jurors. The Court will continue this
practice in the case sub judice. The Defendant's Motion to
Permit Counsel to Conduct Voir Dire of Proposed Jurors is denied. AND NOW, this 22nd day of November, 2005, in accordance
with the foregoing Memorandum Opinion, IT IS HEREBY ORDERED THAT:
1) the Defendant's Motion to Suppress (Document No.
15) is DENIED;
2) the Defendant's Motion for Early Disclosure of
Jencks Materials (Document No. 17) is DENIED;
3) the Defendant's Motion to Inspect Jury Selection
Materials (Document No. 19) is GRANTED;
4) the Defendant's Motion to Permit Counsel to
Conduct Voir Dire of Prospective Jurors (Document No.
23) is DENIED; and
5) the Court reserves ruling upon the Defendant's
Motion to Permit Counsel to Submit Questions on Voir
Dire of Prospective Jurors (Document No. 21) until
specific proposed questions are submitted for the
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