The opinion of the court was delivered by: Judge Kosik
This matter is before us on a defense motion to suppress evidence. After briefing, the court scheduled a hearing.
The defendant, Rodney Boomer, is charged in an indictment with conspiracy to distribute in excess of five grams of cocaine base, marijuana and heroin in violation of 21 U.S.C. §846. There are five additional counts; three substantive counts of distribution and possession; one count of a convicted felon possessing a firearm and ammunition in violation of 18 U.S.C. §§922(g)(1) and 924(e)(1), and one count charging the defendant with possession and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c).*fn1
The defense motion claims, (1) the search of a business and a residence on July 27, 2006 by the Pocono Mountain Police was without appropriate consent or warrant to search and, (2) any statements of defendant Boomer were not voluntary because they were given under duress and in violation of the U.S. Constitution. The defendant seeks to suppress all evidence acquired in the searches, as well as defendant's statements.
Because there was a gross divergence of evidence as to the events and circumstances on which we must base our conclusions, we are obliged to make findings based on credibility. Although the defense offered contradictory evidence, we find the evidence of the prosecution to be more credible because it is corroborated by documents, as well as reports, which, in some instances, memorialized events.
On July 27, 2006, Eric Kerchner, a Monroe County detective, was involved in a controlled purchase of a controlled substance from the defendant Rodney Boomer. The officer was aware of earlier purchases of drugs from Boomer. In preparation for the controlled purchase, the witness met with a confidential informant (CI) who was searched and then provided with $450.00 which was photographed. They both got into a car and drove to the New York Styles Clothing and Footwear Store. In mid-afternoon, the CI approached the store door, which was locked. A female opened the door. After a few minutes, the CI exited, got back into the officer's car, and handed him a bag with white powder which field tested positive for cocaine.
The CI told the officer he was returning to the store to introduce the officer as the customer. The CI had informed Boomer that the CI was purchasing on behalf of a customer. The door was ajar and opened by the female who let them in. The CI introduced the officer to Boomer. The CI had negotiated a $50 credit from Boomer because of the excessive charge for the drugs. The officer selected a pair of sneakers and went to the cash register where he handed Boomer a $20 bill, expecting change. Boomer balked, objecting to connecting the drug purchase with a merchandise transaction. Boomer privately chastised the CI for making such a connection. After the female let them out the door, the CI and the officer were about to depart the area. Boomer exited the store and again commenced arguing with the CI.
Upon returning to police headquarters, the CI told them there were additional controlled substances on the premises. Believing they had probable cause to arrest Boomer, a detail from the Pocono Mountain Regional Police headed by Sgt. Chris Wagner proceeded to the store at approximately 6:00 p.m. On reaching the store, the officers observed the female. Apparently, after seeing the police, she ran into the store, which was open for business. The police pursued the female through the open door as she was yelling something. Sgt. Wagner observed the defendant behind the counter. Defendant was reaching into a cargo pocket on his right hip. Boomer was ordered to raise his hands. The defendant hesitated as the officer moved behind the counter. The officer drew his sidearm. After the defendant was secured, Sgt. Wagner returned to what it was the defendant appeared to discard. The object turned out to be a bandana with a substance the officer believed to be marijuana. In the process, the officer observed a 9mm handgun directly in the same area.
Another officer with the Pocono Mountain Police, Richard Lutchke, accompanied the arresting detail. He had used the CI over a period of ten years, and was aware of his previous controlled purchases from Boomer. The officer had verified the CI's purchases, as well as other arrests due to his reliability.
After Boomer was arrested and taken into custody, his wife, Cathy Boomer, and his mother arrived at the business within a half hour. Having been informed by a superior that Boomer identified his wife as owner of the store, the officer requested her consent to a search of the premises. He first had her execute a non-arrest form. Cathy Boomer said she owned the store and the business.*fn2 She also represented that the 9mm gun was hers and was purchased by her. Cathy Boomer acknowledged that her husband was selling drugs. Presented with a written consent to search form for the business, Cathy Boomer signed it.
While in custody at the business, Boomer wished to cooperate. Without any interrogation, he volunteered incriminating information at the scene of the arrest and later at his mother's residence. At one point at the arrest scene, he volunteered where crack cocaine was located under the counter in the store. He also gave written consent to search his vehicle at the store. We believe the latter as an issue is mooted by the fact that nothing incriminating was discovered. He was told not to say anything further until he was taken to police headquarters.
Before being taken to headquarters, the principals were taken to Lucy Boomer's house where Rodney Boomer and his wife, Cathy, shared a bedroom. Prior to arriving at the residence of Lucy Boomer, she was provided with a non-arrest form, as well as a consent to search her house, which she signed at 6:45 p.m. At the home, Cathy Boomer told the police that there was marijuana in the dresser drawer of the bedroom. In fact, ...