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United States v. Owens

January 8, 2010

UNITED STATES OF AMERICA
v.
KAREEM OWENS, DEFENDANT



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Defendant Kareem Owens's motion to suppress evidence. (Doc. No. 253.) Defendant moves to suppress evidence found in vehicles in which he was traveling at the time of two unrelated traffic stops. For the reasons that follow, the motion will be denied.

I. BACKGROUND*fn1

The facts in this case arise from two independent motor vehicle stops and subsequent searches. The first stop occurred on February 5, 2008; the second, on February 27, 2009. In each case, Defendant was a passenger in the vehicle at the time of the search and seizure.

On February 5, 2008, Defendant was traveling as a passenger in a Ford Windstar minivan. At approximately 2:30 a.m., Corporal Steven Prisbe("Corporal Prisbe") of the Harrisburg City Police Department observed the Windstar stopped in the roadway of the 1400 block of Catherine Street in the Allison Hill area of Harrisburg. The roadway is a one-way street in a residential area, with parked cars lining both sides of the street. After observing the van remain stationary with the ignition on for approximately two minutes, Corporal Prisbe pulled up behind it in his marked patrol car. Immediately thereafter, the van proceeded slowly, approximately ten to fifteen miles per hour, down the street. Though the speed limit was not visibly posted, Corporal Prisbe testified that the speed limit on the roadway was twenty-five miles per hour. After following the car for approximately three blocks and observing it occasionally drift from side to side across the single-lane roadway, Corporal Prisbe activated his emergency lights to effect a traffic stop. The vehicle unsuccessfully attempted to pull into two or three parking spaces prior to eventually parking in an illegal parking spot. Suspecting that the driver was under the influence of alcohol, Corporal Prisbe called for backup prior to approaching the vehicle.

As Corporal Prisbe approached the vehicle, the driver opened the window and yelled that he did not have a driver's license. Despite the lack of identification, Corporal Prisbe ascertained the driver's name, Winston McCollough ("McCollough"), and the names of the two other occupants of the vehicle. Defendant Kareem Owens was one of the passengers in the vehicle. The driver also informed Corporal Prisbe that he could locate the owner of the vehicle, Toyana Anderson.

Corporal Prisbe then contacted Anderson, confirmed that she was the owner of the vehicle, and explained what had transpired. He explained to Anderson that she could be charged for "permitting violation of title under the Pennsylvania vehicle code," and that the car was in danger of being towed. Anderson arrived at the scene, and Corporal Prisbe requested her permission to search the vehicle "to protect her rights" so she would not "inherit something" the previous occupants had left in the vehicle. She gave consent to search the vehicle. Corporal Prisbe recovered a loaded handgun, a holster, and "a quantity of crack cocaine" from the rear seat of the van.

Just over a year later, on February 27, 2009, a 1999 red or maroon Mercedes Benz was stopped for speeding while traveling southbound on Interstate 81 by Pennsylvania State Police Trooper Anthony Todaro ("Trooper Todaro"). Drug Enforcement Administration ("DEA") Agent Keith Kierzkowski had instructed Trooper Todaro to survey the area for a vehicle of that description and to pull the car over for a traffic violation if the situation presented itself. A confidential informant working with the Dauphin County Drug Task Force had provided information to Agent Kierzkowski that a 1999 red or maroon Mercedes Benz would be returning from New York, specifically, the Bronx, to the Harrisburg area transporting approximately 100 grams of heroin in the late hours of February 26, 2009 or very early morning hours of February 27, 2009. The confidential informant had previously made controlled purchases of heroin from a suspected drug dealer, Omar Davenport, and it was Davenport who provided the information about the drug purchase to the confidential informant. The confidential informant also specified that Bobbie Sue Miller would be driving the vehicle. Though Agent Kierzkowski had attempted to conduct electronic surveillance of the vehicle, the technology failed, prompting Agent Kierzkowski to organize a dedicated surveillance team to physically monitor the vehicle as it traveled along Interstate 81. He instructed the surveilling officers, including Trooper Todaro, to pull the car over if they noted a traffic violation.

When a vehicle fitting the above description passed Trooper Todaro, he attempted to clock the speed, but was initially unable to determine the vehicle's speed because a commercial truck impeded his radar. Trooper Todaro then pulled onto the highway behind the Mercedes and was able to determine that it was traveling 85 miles per hour in a 65 mile per hour speed zone. Trooper Todaro initiated a traffic stop by activating his overhead lights and siren. The vehicle pulled over to the side of the road, and the driver, Bobbie Sue Miller, surrendered her driver's license and registration. Trooper Todaro smelled a very strong odor of air freshener, but saw no other visible indication of narcotics in the vehicle.

After checking Miller's license and registration in his patrol vehicle, Trooper Todaro returned to the car and asked Miller to exit the car. Once they were at the rear of the vehicle, Trooper Todaro advised Miller that she was receiving a warning notice for her violation, and he began to prepare the notice while engaging her in conversation. He inquired about the other occupants of the vehicle and her reasons for traveling that morning. Miller hesitated to identify the other passengers in the car, stammering before indicating that her cousin, "Brittany Smith," occupied the passenger's seat. She said she could not recall the name of Defendant, located in the backseat, but she identified him as "Brittany's boyfriend." Trooper Todaro inquired further about the passengers in the car and their reasons for traveling prior to giving Miller the warning notice and returning her driver's license. Todaro finished writing the citation but did not inform Miller that she was free to leave, retaining control of her registration documents. Instead, he instructed Miller to remain at the rear of the vehicle while he checked the registration against the VIN number on the dashboard.

While back at the front of the car, Todaro asked "Smith" if she would answer a few questions. She responded that her name was Brittany Vasquez, that she was the driver's friend, not cousin, and that she did not know Defendant's name but that he was a friend of Miller's. Her reasons for traveling that morning also differed greatly from those given by Miller. It was not until after questioning Vasquez that Trooper Todaro returned to the rear of the car, explained the warning notice to Miller, and advised her that she was free to leave.

Though Miller immediately turned to leave, Trooper Todaro asked if she would answer a few more questions prior to her departure, and she agreed. He asked her whether there were any loaded weapons or drugs in the vehicle. She "replied in the negative." Trooper Todaro then asked her specifically whether certain types of drugs were in the car, i.e. marijuana, cocaine, heroin, or methamphetamine. Miller reacted nervously. She "shook her head from left to right quite wildly, said no . . . [and] glanced back toward the vehicle[,] . . . breaking eye contact . . . [and] shifting her body weight from left to right." She also dropped her driver's license and "requested permission to reach over . . . to pick it up." Trooper Todaro requested permission to search the vehicle, and Miller consented. Defendant and Vasquez were removed from the car, patted down, and the vehicle was searched. A clear plastic bag containing a brownish powdery substance believed to be heroin was found between the right front seat and center console of the car.

II. DISCUSSION

Defendant moves to suppress physical evidence taken at the time of each stop. Specifically, he argues that in each instance his seizure was unlawful. With regard to the February 5, 2008 stop, he contends that the Government lacked reasonable suspicion to detain the vehicle in the first instance, and thus all evidence recovered from the consensual vehicle search was fruit of the poisonous tree. Defendant challenges the February 27, 2009 stop on the basis that the length of the detention and the scope of the questioning used by Trooper Todaro exceeded the scope of a traffic stop, thereby creating an unlawful seizure that requires that all evidence found after that time be suppressed. The Court will address each seizure in ...


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