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Moss v. Sobina

March 19, 2010

COREY MOSS PETITIONER,
v.
RAYMOND SOBINA, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Jones

Magistrate Judge Carlson

REPORT AND RECOMMENDATION*fn1

I. Introduction

In this case we are called upon to review a thoroughly-litigated state court determination that the warrantless seizure of a cache of illegal drugs from the motel room occupied by the petitioner, Cory Moss, in July of 2004 was supported by probable cause, and was justified by exigent circumstances. For the reasons set forth below, we recommend that Moss' petition be denied because Moss had a full and fair opportunity to litigate these issues these state court findings of probable cause and exigent circumstances are fully justified in the circumstances of this case.

II. Statement of Facts and of the Case

A. Factual Background

The facts surrounding this case were aptly summarized by the Pennsylvania courts in two opinions issued by the Court of Common Pleas and the Superior Court, (Doc. 7, Apps. A and B), and are reflected in the testimony adduced during a suppression hearing conducted in December, 2004. This evidence reveals that to prosecution of Cory Moss arose out of a fast-moving July 2, 2004 police investigation into drug trafficking in York County.

This investigation began on July 2, 2004 at 9:50 a.m. when Detective Brian Murphy of the York County Drug Task Force received a call from Detective Steve Alcorn of the Dauphin County Drug Task Force. (Doc. 7 App. C pp, 7-13.) Detective Alcorn related to Murphy that he had been contacted by a confidential informant, who was a cab driver. (Doc. 7 App. C pp. 7, 13) That confidential informant had worked with Detective Alcorn on numerous occasions in the past and his efforts led to multiple arrests and successful drug buys involving undercover officers. (Doc. 7, App. C, pp. 7-8).

According to Detective Alcorn, the informant advised that the night before he picked up two men and drove them to the Keystone Inn, a motel located in York County. (Doc. 7 App. C pp. 7, 13) The two men instructed the informant to wait and they entered Room 121 of the hotel. (Id.) After several minutes the men emerged from the room and returned to the informant's cab. (Id. at p. 7) The two men then showed the informant two "eight balls" of cocaine that they stated they had purchased in the motel room. (Id. at pp. 7, 13.)

Alerted to this information, Detective Murphy immediately contacted officers from several area police departments who were assigned to the York County Drug Task Force and requested that they meet him at the motel. (Id. at p. 8) Detective Murphy arrived at the motel at 10:40 a.m., a little less than an hour after he received the information from Detective Alcorn. At the motel, Detective Murphy and other police were able to corroborate some of the information provided by the informant and specifically confirmed that Room 121 had been occupied the previous evening, as the informant reported. When police asked the front desk clerk if Room 121 was still occupied they were told that the room was occupied by a man and a woman, who were scheduled to check out in approximately 20 minutes, by 11 o'clock. (Id. at pp. 16-17.)

From Murphy's past experience, he knew it would normally take a little over an hour to gather the required information, type up a warrant application, travel to the appropriate magistrate to get the warrant signed and then get back to the location to execute the warrant. (Id. at p. 18) Thus, despite having immediately acted upon the information he received from the informant linking the occupants of the motel room to drug trafficking, Murphy knew that he would not be able to obtain a warrant before the suspected drug dealers checked out of the motel room. Confronted with this dilemma, detective Murphy acted prudently. He contacted attorney Scott McCabe in the District Attorney's Office and, after explaining the situation, was advised that sufficient exigent circumstances existed to immediately enter and secure the occupants of the room and then he was to either secure consent to search from the occupants or secure a search warrant. (Id. at p. 8.)

Acting on this advice, police obtained a room key from the hotel staff and the officers proceeded to room 121. (Id. at pp. 8, 11.) When Detective Murphy and the other officers entered the room they found the petitioner, Cory Moss, and a woman, Anneleise Scherrer, inside the room. (Id. at pp. 8-9, 11) As he entered the room Detective Murphy also observed a baggie of marijuana in plain view lying on the dinette table. (Id. at p. 9) The detective immediately advised Moss and Scherrer why the police had gained entry and informed them that the police had information that cocaine was being sold from that room. (Id. at pp. 9, 11) After Detective Murphy advised Moss and Scherrer of their Mirandarights, he asked whether they would give him permission to search the room. (Id. at pp. 9, 11.)

Moss and Scherrer agreed and also signed consent to search forms. (Id. at pp. 9, 11-12.) Under police questioning Moss initially identified himself as Don L. Wright, but Detective Murphy later determined that name was an alias that Moss was using because he was wanted out of Dauphin County on an outstanding detainer. (Id. at p. 9.) After obtaining consent to search, the police found a bag of crack cocaine in Moss' right front pants pocket and $2,432 in cash was located in Moss' left front pants pocket. (Id. at p. 10.) The bag of marijuana lying in plain view was also confiscated by police along with other items, including a bag with marijuana residue, a hand scale, various black and blue baggies, a digital scale, a box of sandwich baggies, three marijuana cigarettes, known as blunts, a toy gun in a holster and two cell phones. (Id. at p. 10.)

Moss was then arrested and was charged with the offenses of possession of cocaine with intent to deliver, possession of a small amount of marijuana and criminal conspiracy. In the course of this state prosecution, on October 29, 2004, Moss filed an Omnibus Pre-Trial Motion in the York County Court of Common Pleas requesting the trial court suppress the physical evidence seized by police after they entered his hotel room.

On December 2, 2004 a hearing was held on Moss' pre-trial suppression motion. At this hearing the government presented testimony outlining the information and exigencies confronting police when they entered Moss' motel room on July 2, 2004. At the close of the hearing the trial court denied Moss' motion to suppress, finding that there was probable cause to search the motel room, and that Moss' imminent departure from the motel created an exigency, justifying a warrantless entry into the room.. (Doc.7, App. A and C.) On March 14, 2005 Moss was tried, and convicted of the offenses of possession of cocaine with intent to deliver and possession of a small amount of marijuana.

On May 4, 2005 Moss was sentenced to an aggregate term of 7 1/2 to 15 years in a state correctional institution following his conviction on these state drug offenses. Moss appealed this conviction to the Superior Court of Pennsylvania. In connection with this appeal, on August 8, 2005, the trial court issued an opinion pursuant to Pa.R.A.P 1925(a), (Doc. 7, App. A), explaining its reasons for the denial of Moss' suppression motion. After detailing the factual background of this investigation in its opinion, the trial court stated that: "Based on the above referenced facts, and based on the information that Detective Murphy had from Detective Alcorn and given that there was less than 70 ...


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