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United States v. Pasca

April 14, 2008

UNITED STATES OF AMERICA,
v.
ROMULUS PASCA, ET AL., DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

OPINION and ORDER

This matter is before the Court on a Motion to Suppress Evidence and Statements [55], filed by Defendant Romulus Pasca on November 13, 2007. For the following reasons, said motion is denied.

FINDINGS OF FACT

The credible testimony offered at the January 28, 2008 suppression hearing established the following facts.*fn1

On April 13, 2007, the Monroeville Police Department received a anonymous 911 call reporting suspicious activity of two white males*fn2 at an Automated Teller Machine ("ATM") located at a Citizens Bank along Route 22 in Monroeville, Pennsylvania. The 911 caller reported two men "messing" with the Citizens Bank ATM machine. According to the 911 caller, the individuals would approach the ATM and "mess" with the machine, but would leave when a customer approached to use the ATM. Subsequently, the two men would return to their green mini-van, wait until no one was at the ATM, and then return to the ATM machine.

At approximately 6:32 a.m. on that morning, at which time it was still dark, Officers Clinton McMaster and John Beehner of the Monroeville Police Department responded to the 911 call. They immediately did not see any individuals at the Citizens Bank ATM machine. After checking the area, the officers drove to a nearby bank, namely the Dollar Bank, located approximately a few hundred yards from the Citizens Bank.

The officers approached the Dollar Bank location in their vehicle and observed a white male standing at the drive-thru ATM machine (later identified as co-Defendant Vasile Ciocan, Criminal No. 07-00182-2) and another white male standing at the walk-up ATM machine (later identified as Defendant Pasca). As they approached, both men turned around, saw the officers in their vehicle,*fn3 and began to walk away "at a brisk manner" in different directions. (Transcript at 7:15-16; 8:21-22). The officers drove their vehicle along side Defendant Pasca, Officer McMaster exited the vehicle, and instructed Defendant Pasca to stop. Defendant Pasca did not stop immediately. After repeating his orders,*fn4 Pasca finally stopped and faced McMaster with both hands in his front pants pockets.*fn5 Officer McMaster drew his weapon and directed Defendant Pasca to remove his hands from his pockets. Officer McMaster testified that he ordered him to remove his hands "several times." (Transcript, at 9:18-20). As he ordered him to remove his hands, Officer McMaster continued to approach Defendant Pasca with his weapon drawn. Once he was close enough to the Defendant, Officer McMaster holstered his weapon and "grabbed his arms so he had no control over his arms and ... removed his hands from his pockets." (Transcript, at 9:22-24). Officer McMaster placed Defendant Pasca's hands on his vehicle and conducted a pat-down search. Officer McMaster observed a "bulge" in one of Pasca's front pockets, which, after he touched it, described it as "a hard rectangular items or items." (Transcript, 10:5-6). He elaborated: "It felt a little bit--not as wide as a cigarette pack, but it wasn't a cellphone." (Transcript, 10:6-7). Fearing for his safety,*fn6 Officer McMaster pulled the items out of Defendant Pasca's pocket: "a wad of cash" and a small, manila envelope, inside of which were three blank, white cards with a magnetic strip on the back. (Transcript, at 11:9-12 & 30:5-11). At that point, Officer McMaster placed Defendant Pasca under arrest.

Once Officer McMaster had Defendant Pasca under control (i.e., under arrest), Officer Beehner looked for the "second actor." Officer Beehner described his encounter with the co-Defendant:

He went back towards the rear of the building and I saw him over by a dumpster. And then when I looked back, he was walking from the dumpster towards the Lowe's parking lot, and that's when I confronted him and told him to stop.

(Transcript, at 44:3-6). Ciocan complied and Officer Beehner "got ahold of him and brought him over to the police car also." (Transcript, at 44:7-11).*fn7 An eventual search of the dumpster conducted by Officer McMaster (but not Officer Beehner)*fn8 revealed money and counterfeit ATM cards scattered in the bottom in plain sight.

After arresting the Defendants, the officers saw two green mini-vans adjacent to each other in a parking lot along Route 22, which were consistent with the description provided by the anonymous 911 caller. One had Pennsylvania registration and the other had Illinois registration. Upon questioning at the scene, both suspects refused to answer in which van they arrived. Officer McMaster testified, upon noticing that the door to the van with Illinois registration was unsecured, that he opened the door and looked in the glove box.*fn9 While now in custody, the officers re-searched each suspect and found a set of car keys on co-Defendant Ciocan. Corporal Hainsey from the Monroeville Police Department pushed the unlock button on the remote control key discovering that it unlocked the van bearing an Illinois license plate, number G335418. The vehicle was impounded and towed to the Monroeville Training Center. Pursuant to a federal search warrant, authorities searched the van and found inculpatory evidence.*fn10

The suspects were transported to the Monroeville Police Department where Defendant Pasca was questioned by Special Agent Timothy Lauster of the Federal Bureau of Investigation ("FBI"). Before questioning, Special Agent Lauster read (in English) to Defendant Pasca an "Advice of Rights" form (see Exhibit 2 at Docket No. 67), known as a FD-395 form, which he signed and which Special Agent Lauster testified he appeared to understand. In addition to the FD-395 form, Special Agent Lauster also read to Defendant Pasca a "Consent to Search" form (see Exhibit 3 at Docket No. 67), known as a FD-26 form, which again he signed and appeared to understand, according to the Agent. In said consent form, Defendant Pasca gave consent to law enforcement to search Room 308 at the Red Roof Inn as well as two e-mail addresses. This initial interview lasted about one hour. Special Agent Lauster did not testify regarding the substance of this initial interview.

Later that day, Defendant Pasca appeared before a federal magistrate judge for his initial appearance. Thereafter, Defendant Pasca agreed to be interviewed again by FBI agents for a second time. At this time, Defendant Pasca signed another FD-395 form in Romanian and another FD-26 form also in Romanian, in which he gave consent to search the hotel room and e-mail addresses as in the first FD-26 form. (See Exhibits 4 & 5 at Docket No. 67). This second interview lasted approximately forty-five minutes. Again, Special Agent Lauster did not testify regarding the substance of this second interview. Special Agent Lauster further testified regarding the execution of a number of search warrants on the vehicle, the twenty blank credit cards obtained during the course of the entire investigation, the electronic storage devices found in the vehicle, a storage locker in Virginia, and the hotel room at the Red Roof Inn.

PROCEDURAL HISTORY

On May 8, 2007, the Government filed an Indictment charging Defendant Pasca as well as his co-Defendant Ciocan with the following: (1) conspiracy to commit offenses against the United States, namely (a) bank fraud, in violation of 18 U.S.C. § 1344(1), and (b) the use of counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1); (2) bank fraud, in violation of 18 U.S.C. § 1344(1) and (2); and (3) aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1) and (2). After numerous extensions of time to file pre-trial motions, on November 13, 2007, Defendant Pasca filed the instant Motion to Suppress Evidence and Statements.*fn11 After an extension of time to respond, on January 3, 2008, the Government filed its Response to Motion to Suppress Evidence and Statements. On the same day, the Court set Defendant's motion for a hearing. On January 28, 2008, the Court held a suppression hearing, at which Officer McMaster, Officer Beehner, and Agent Lauster testified, as outlined above. After hearing all the testimony and at the suggestion of defense counsel, the Court set a post-hearing briefing schedule. After a short extension of time granted by the Court upon motion by Defendant, on March 3, 2008, Defendant Pasca filed his Post-Hearing Memorandum in Law in Support of Defendant's Motion to Suppress Evidence and Statements. (Docket No. 77).*fn12 On March 13, 2008, the Government filed its Response to Post-Hearing Brief in Support of Motion to Suppress Evidence and Statements, in which it advised the Court that the Government intends to rely on its previously-filed response. (Docket No. 79).

ARGUMENTS PRESENTED

In the instant motion, Defendant Pasca moves to suppress the evidence and statements to law enforcement officers "because the officers lacked probable cause or even reasonable suspicion to stop, search and seize Mr. Pasca." (Docket No. 55, at 1). As to only the statements, in addition to being fruit of an alleged illegal intrusion under the Fourth Amendment, Defendant Pasca asserts that his statements to law enforcement should be suppressed because they were made in violation of the Supreme Court's holding in Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny. In response, the Government separately addresses the evidence and statements, providing argument as to both.

ANALYSIS

It is well-settled that, at a hearing on a motion to suppress, "the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. Richardson, 501 F.Supp.2d 724, 734 (W.D. Pa. 2007) (citations omitted). At the conclusion of the suppression hearing held on January 28, 2008, the Court commented as to the credibility of both police officers and Special Agent Lauster: "I believe all three gentlemen who appeared, both officers and the agent, gave very credible testimony this afternoon." (Transcript at 66:25-67:2).

1. Terry Stop and Frisk

First, the Government asserts that pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the police officers possessed reasonable suspicion to stop and to conduct a pat-down search of the Defendant for weapons or contraband. Subsequent to the frisk, under the plain feel doctrine, the Government argues, the pat-down search revealed "a hard rectangular items or items," which the police officer reasonably mistook as a weapon and thus the removal of the same was within the confines of Terry.

The Terry stop and the Terry pat-down frisk are two separate and distinct determinations: "our inquiry is a dual one-whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. 19-20. In other words, the frisk does not follow automatically from the stop. See Adams v. Williams, 407 U.S. 143, 146 (1977) ("So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose") (citing Terry, 392 U.S. at 30) (footnote omitted) (emphasis added). Accordingly, the Court will address the Terry stop and frisk in two parts: (1) whether reasonable suspicion existed to stop and detain Defendant Pasca under Terry; and (2) whether the pat-down frisk was objectively reasonable under Terry, i.e., whether the police officer's removal of the "hard, bulky item" in Defendant Pasca's pocket pursuant to the "plain feel" doctrine was reasonable.

A. Terry Stop

In Terry v. Ohio, the Supreme Court held that: where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Terry, 392 U.S. at 30 (emphasis added). Subsequent to Terry, in Adams v. Williams, 407 U.S. 143 (1972), the Supreme Court seemingly expanded upon the narrow holding ...


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