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Commonwealth v. Gould

Superior Court of Pennsylvania

May 9, 2018

CARL GOULD Appellant

          Appeal from the Judgment of Sentence June 1, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004022-2015, CP-36-CR-0005383-2015

          BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT [*] , J.


          McLAUGHLIN, J.

         Appellant Carl Gould was charged with numerous drug-related charges, including three counts of possession with intent to deliver, [1] after State Police executed a search warrant on a car they had observed Gould driving and seized five bundles of heroin and 34 plastic bags of cocaine, as well as documentation linking Gould to the vehicle.[2] The troopers obtained the search warrant based in part on information acquired from a state parole agent, who had previously searched the car. Gould argues that the trial court should have suppressed the heroin and cocaine because the parole agent lacked reasonable suspicion to detain Gould and perform the initial search, and because he was improperly acting at the behest of the State Police. We affirm.

         Gould was arrested on August 9, 2015, and charged under two docket numbers, which were consolidated for trial. Before trial, Gould moved to suppress the items recovered following the search of the vehicle. The trial court held a hearing on Gould's motion to suppress on May 17, 2016, at which Agent Robert Clites of the Pennsylvania Board of Probation and Parole ("Board") and Pennsylvania State Trooper Noel Velez testified. Agent Clites and Trooper Velez testified as follows at the suppression hearing.

         Agent Clites testified that he received a telephone call on August 7, 2015, from Trooper Velez, who was conducting surveillance of suspected drug activity at the Westfield Inn in East Hempfield Township, Lancaster County. Trooper Velez conveyed to Agent Clites that he had observed Gould at the Inn and that he suspected Gould was involved in the drug activity under investigation. He also gave Agent Clites a description of the car he had seen Gould driving. According to Agent Clites' testimony, Trooper Velez told him that "Mr. Gould showed up in a gray Nissan at that hotel, went inside, came back out. They suspected that he was involved somehow with that drug activity." N.T. Suppression Hearing, 5/17/16, at 45.

         Trooper Velez asked Agent Clites if Gould was under supervision by the Board. Agent Clites looked up Gould's information and confirmed that Gould was in fact under supervision, as he was on parole for sentences imposed on several drug-related convictions.[3] Gould's parole officer was Agent George Mann, who was "not available at all that weekend." Id. at 33. Agent Clites reviewed Gould's parole file (including Agent Mann's notes), which indicated that Gould's approved address was in Harrisburg, and that Agent Mann had sanctioned Gould in the past for staying overnight in Lancaster without prior approval. Gould would need the Board's permission in order to change his approved residence from Harrisburg to Lancaster, and Agent Clites found nothing in the file giving Gould permission to stay overnight in Lancaster. Gould could drive to Lancaster, so long as he did not stay overnight. The file included an entry by Agent Mann from three weeks earlier, stating that Gould had a girlfriend in Lancaster with whom he was attempting to cut ties.

         In addition to prohibiting him from staying overnight at a place other than his approved residence, the conditions of Gould's release specified that it would be a violation of parole for Gould to possess drugs. Gould's file also contained a form Gould had signed in which he consented to parole officers conducting warrantless searches of his person, property, and residence.

         After speaking with Trooper Velez and reviewing the file, Agent Clites called his supervisor, who instructed him to "to see if [Gould] was found at the Westfield Inn, to conduct a search if [Agent Clites] felt that it was appropriate, and to detain [Gould] if [Agent Clites] felt that it was appropriate." Id. at 17. Agent Clites arrived at the Westfield Inn at around 8 p.m., spoke with Trooper Velez, and waited for Gould to return. By approximately 2:30 a.m. that night, Gould had not returned to the hotel, and both Agent Clites and Trooper Velez went home.

         The next day, Agent Clites again called his supervisor, who instructed him to "follow up" on the situation. Id. at 18. Agent Clites returned to the Westfield Inn around 4:00 p.m. and waited in his vehicle for Gould.

         Gould arrived at the hotel that night at approximately 1:30 a.m., driving a car that matched the Nissan Trooper Velez had described. Agent Clites parked his vehicle behind Gould's, blocking it in. When asked whether he blocked Gould's car so that Gould could not leave, Agent Clites testified, "I wouldn't say that. That was more of a safety issue. I don't know what his response is going to be when I show up at the car. I would prefer that he not step on the gas and back out." Id. at 40.

         Agent Clites got out of his car, knocked on Gould's window, identified himself as a parole officer, and asked Gould to get out of his vehicle. Agent Clites testified that "[t]here were other troopers around for backup, just in case anything happened; however, it was just me up to the vehicle." Id. at 20. When Gould opened the door, Agent Clites noticed a very strong odor of burnt marijuana emanating from the car. Agent Clites escorted Gould to the sidewalk of the Westfield Inn.

          On the sidewalk, Agent Clites patted Gould down for weapons, and found a large bundle of cash in Gould's pocket. Agent Clites asked Gould for identification; Gould stated that his wallet was in the door of his vehicle, and gave Agent Clites permission to retrieve it. Agent Clites retrieved the wallet from the car door and confirmed Gould's identity with his driver's license.

         Agent Clites then questioned Gould about why he was in Lancaster. Gould responded that Agent Mann "knows" Gould goes to Lancaster, and that Gould was only at the Westfield Inn to pick someone up. Id. at 23-24. Agent Clites then informed Gould that he was going to search his car. Gould protested that it was a borrowed vehicle and that he did not give consent to search.[4] Agent Clites told Gould "based on what I see, I smell marijuana coming out of your car. I saw in the notes that you have been sanctioned for drug use in the past, that, you know, you were sanctioned in the past for being in Lancaster without permission, " and "[b]ased on that information, I'm going to take a look through the car to see what's in there." Id. at 24.

         Agent Clites opened the driver's side door, and then the console, where he found one marijuana cigarette and a large plastic bag containing many smaller plastic bags. Agent Clites testified that he concluded, "[b]ased on [his] experience, that was either cocaine or heroin, and there were large quantities of it in there." Id. at 25. Agent Clites stopped his search of the vehicle, and called Trooper Velez to notify him of what he found and that he would be detaining Gould for violating two conditions of his parole: (1) staying at an unregistered address without permission and (2) possessing drugs. Gould was "placed in handcuffs and taken into custody." Id.

         On cross-examination, Gould's attorney asked Agent Clites if Trooper Velez asked him to help with the state police investigation. Agent Clites responded that he was aware that Trooper Velez was conducting a drug investigation in the hotel, but that Trooper Velez "didn't necessarily ask [him] to go assist with their investigation." N.T., 5/17/16, at 27. Rather, according to Agent Clites, he asked him "to deal with Mr. Gould from a parole perspective." Id. Agent Clites further explained that he was following up on information about a possible parole violation, as was his duty as a parole agent, and because his supervisor instructed him to do so:

I am not responding to his request. I'm responding to the information that he's provided to me. It's my obligation as a parole agent, when an individual provides information to me about alleged parole violations, it's my obligation to follow up on that. And I did so also at the direction of a supervisor.

N.T., 5/17/16, at 46.

         Agent Clites further testified that he went to the Westfield Inn because Trooper Velez suspected that Gould was not residing at his approved residence, and because he (Agent Clites) "suspected if [Gould is] coming to the Westfield [Inn] where there's drug activity, that he may be involved with that." Id. at 28. When Gould's attorney asserted that in addition to a violation of Gould's parole, participation in drug activity "would also be a violation of the Penal Code, " Agent Clites responded that that was "not [his] concern." Id. at 31.

         Agent Clites arrested Gould, and a State Police drug detection dog performed a sniff test of the exterior of Gould's vehicle. The dog alerted to the presence of controlled substances in the vehicle. State Police then towed the car to the Lancaster barracks.

         Trooper Velez then prepared an application for a search warrant for the Nissan. The affidavit of probable cause attached to the application did not mention Agent Clites or his initial search of Gould's car, but only the results of Trooper Velez's investigation of the activity in the hotel and the dog sniff of the car's exterior. Generally, the affidavit alleged that a confidential informant had implicated Gould in the sale of heroin and cocaine. The confidential informant told Trooper Velez that Gould had recently obtained a large quantity of heroin and was using a room at the Westfield Inn to package it for distribution, with help from a woman named Latima Backus.

         The affidavit continued: Trooper Velez surveilled the hotel and had observed Gould and Backus entering and exiting. The hotel room under investigation was searched, and it was found to contain heroin and drug- packaging paraphernalia.[5] A second confidential informant told Velez that Gould would be returning to the Inn to pick up the packaged heroin at 1:30 a.m. on August 9, 2015. Gould did return at 1:30 a.m., at which point, according to the affidavit, "Gould was approached in the parking lot and the vehicle was seized." Affidavit of Probable Cause ¶ 24. The affidavit then recounts that a drug detection dog performed a sniff test that indicated the presence of controlled substances.

         At the suppression hearing, Gould's attorney asked Trooper Velez why he did not include in the affidavit the information relating to Agent Clites' interactions with Gould that day and his initial search of the car. Trooper Velez answered that he did not include that information as it "wasn't part of [his] investigation." N.T., 5/17/16, at 49.

         At the conclusion of the hearing, the court denied the motion to suppress. The trial court held a consolidated bench trial on March 27, 2017, after which it found Gould guilty of three counts of possession with intent to deliver, and one count each of possession of drug paraphernalia and criminal conspiracy.[6] The court later sentenced Gould to an aggregate term of two and a half to seven years' incarceration. Gould filed a timely notice of appeal, and raises the following issues:

I. Did the trial court err in denying Mr. Gould's Motion to Suppress where state parole Agent Clites lacked the necessary reasonable suspicion to detain and subsequently search Mr. Gould and his vehicle where the agent was acting as a police officer gathering evidence to support new criminal charges?
II. Did the trial court err in denying Mr. Gould's Motion to Suppress where the search warrant for Mr. Gould's vehicle omitted material facts?

Gould's Br. at 5 (answers below omitted).[7]

         Our standard of review on appeal of the denial of a motion to suppress is "to determine whether the certified record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011) (citation omitted). We "consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Id. If the record supports the factual findings of the suppression court, we reverse "only if there is an error in the legal conclusions drawn from those factual findings." Id.

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