The opinion of the court was delivered by: Legrome D. Davis, J.
AND NOW, this 28th day of March, 2012, upon consideration of the Defendant's Motion to Suppress Physical Evidence (Doc. No. 22) and the Government's response thereto (Doc. No.
30), as well as the evidence presented in the associated suppression hearing and the arguments in the parties' supplemental briefs (Doc. Nos. 45, 46), it is hereby ORDERED that Defendant's Motion to Suppress (Doc. No. 22) is GRANTED in its entirety.
On October 7, 2010, Philadelphia Police Officer Daniel Kostick and his partner pulled- over a 1994 Dodge Caravan driven by James Roberts, the Defendant in this criminal matter. According to Officer Kostick, he stopped the vehicle because it had excessively tinted windows. Kostick subsequently ordered Roberts out of the van for purportedly failing to comply with Kostick's commands. As Kostick tells the story, as Roberts was exiting the vehicle, Kostick saw "drug paraphernalia" in an open driver's side door compartment or "cutout" near the bottom of the door. Kostick never wavered with respect to the location of the drugs. After handcuffing Roberts and placing him in the patrol car, Kostick returned to the Caravan to recover the drugs. As he was bending down, Kostick supposedly saw the butt-end of a gun underneath the driver's seat. All-in-all, Kostick's warrantless search of Roberts and his van yielded numerous ziplock packets containing crack and cocaine, a pill bottle, a loaded Glock 26 handgun, and $1,906 in cash.
Two (2) months later, the Federal Government adopted the case. On December 21, 2010, Drug Enforcement Administration ("DEA") Special Agent Patrick Trainor, relying on information provided by Kostick, sought and obtained a federal arrest warrant for James Roberts. That same day, federal agents arrested Roberts outside his house, near a 1997 green minivan also owned by Roberts. Roberts signed a "Consent to Search" form for the minivan, and agents searched the vehicle and recovered baggies of crack cocaine from the center console.
The doors of Roberts' 1994 Caravan have no compartments or cutouts, so Kostick could not have seen the drugs where he said he did. It is a physical impossibility. Therefore, we previously found that Kostick's testimony, the Government's sole evidence regarding the reasonableness of the October 7th search, lacked credibility. We suppressed the direct fruits of Kostick's search accordingly. (See Doc. No. 41). Now we must decide whether to exclude the fruits of the consensual December 21st search as tainted by the prior Fourth Amendment violation. We conclude that suppression is necessary because the police misconduct here, i.e., a search justified by a manufactured sequence of events, and the resultant deliberately false testimony before this Court, is extreme. This is precisely the type of conduct the Fourth Amendment and associated exclusionary rule aim to deter.
A. The October 7th Search
In the evening of October 7, 2010, Philadelphia Police Officer Daniel Kostick and his partner were out on patrol.*fn1 At about 8:15 PM, the officers stopped an "older Dodge Caravan," later identified as a 1994 Dodge Caravan owned by James Roberts, the defendant in this case. (Tr. 8-9; 100-01; G-2).*fn2 According to Kostick, he and his partner pulled-over the vehicle because the window tint "was so dark that you could not see any occupants inside." (Tr. 9:8-24; 22:10-16). After the Caravan came to a stop, Kostick exited his patrol car and noticed that the "van was shaking a lot." (Tr. 10:13-24). Kostick approached from the van's passenger side and yelled "for the driver to roll down the front two windows." (Tr. 11:6-10). The driver and sole occupant, James Roberts, complied, rolling down the windows and producing a driver's license. (Tr. 11-12).
Under Kostick's version of events, Roberts kept dropping his right hand towards his waistband instead of resting his hands on the steering wheel or his lap as Kostick had instructed. (Tr. 12:8-13:19). Since Roberts would not comply with Kostick's commands, Kostick went around to the driver's side to remove Roberts from the vehicle. (Tr. 13:16-19). According to Kostick:
My partner slowly opened the driver's side vehicle door. I had my
flashlight in my left hand. And while looking down, I noticed small --
two plastic bags with smaller packets inside which I believed to be
paraphernalia. (Tr. 14:9-12). More specifically, Kostick testified
before this Court that the bags "were in a cutout on the door panel .
. . towards the bottom half of the door." (Tr. 15:14-20; 90:5-15).
Kostick stated that he saw the bags "[a]s the door was moving open."
(Tr. 34:7-12). This
testimony comports with Kostick's initial incident report*fn3
and his testimony at the preliminary hearing.*fn4
Roberts finished exiting the vehicle, and Kostick immediately handcuffed him without incident. (Tr. 16:5-19). After placing Roberts in the patrol car, Kostick returned to the van to get the bags he had supposedly seen in the door compartment. From the van, Kostick recovered two (2) plastic bags containing smaller packets of crack and cocaine, as well as an amber bottle containing fifty-eight (58) Xanax pills. (Tr. 17:15-18:1). While bending down to grab the drugs, Kostick claims he saw a "small portion of the butt end of . . . a firearm" sticking out from under the driver's seat. (Tr. 18:2-25; 37-39). This testimony is somewhat inconsistent with Kostick's incident report, which reflects that Kostick recovered the firearm, a loaded Glock 26, "on the floor . . . under driver seat." (D-2, at 3). Kostick also searched Roberts incident to this arrest and found $1,906 in cash in his pockets. (Tr. 19:4-8; D-2, at 3).
During the suppression hearing, the Defendant introduced into evidence several photographs of a blue Dodge Caravan, license plate number HNH-1722, taken by Sonya Roberts, James Roberts' wife. (See Tr. 64-71; D-4; D-5). The photographs are date stamped October 11, 2010 (four (4) days after the traffic stop in question) and December 15, 2010 (two
(2) days after the preliminary hearing). (Tr. 65-71; D-4; D-5). The license plate number in the photographs matches that of the vehicle Roberts was driving when Kostick pulled him over. (See D-1). According to Sonya Roberts, she took the October 11th pictures to show that Roberts' van did not have illegally tinted windows. (Tr. 66:7-25). Similarly, Sonya Roberts testified that she took the December 15th pictures because:
After the preliminary hearing, my husband told me that the officer had made a statement stating that there was [sic] drugs found on the door pocket on the bottom of the door, so I took pictures to show that there was no pocket on the bottom door. The door is all panel. (Tr. 68:8-14).
We have reviewed the photographs in D-4 and D-5 and conclude that (1) they do, in fact, depict the 1994 Dodge Caravan driven by James Roberts and stopped by Officer Kostick on October 7, 2010, and (2) the photographs show interior door panels without any compartments, cutouts, or cubbyholes.*fn5 As such, the photographs completely and undeniably undermine a critical aspect of Kostick's testimony, namely his contention that he observed the "drug paraphernalia" in the door cutout as Roberts was exiting his vehicle. All of Kostick's subsequent conduct and discoveries, i.e., his arrest of Roberts and recovery of the drugs and gun, flow immediately and directly from his alleged plain view observation of the drugs in the door. Since there was no door compartment, and Kostick's testimony is a physical impossibility, we cannot accept as true anything he said.*fn6 The Government recognized as much, acknowledging that if we believed the photos to be true and accurate, we "would have to make a determination that Officer Kostick completely fabricated what happened during the stop." (Tr. 159:13-19; 164:8-14).
To make some sense of the photographs, the Government re-called Officer Kostick. Unfortunately, Kostick's testimony once confronted with the photographs did not fill us with confidence. Instead, Kostick equivocated as ...