Com. v. Nation

• Decision Date: 24 October 1991
• Citation: 598 A.2d 306,409 Pa.Super. 495
• Parties: COMMONWEALTH of Pennsylvania v. Daniel NATION, Appellant.
• Court: Pennsylvania Superior Court

Page 306

598 A.2d 306

409 Pa.Super. 495

COMMONWEALTH of Pennsylvania v. Daniel NATION, Appellant.

Superior Court of Pennsylvania.

Argued May 8, 1991.

Filed Oct. 24, 1991.

Lyn R. Bailey, Asst. Public Defender, Lancaster, for appellant.

Brian E. Chudzik, Asst. Dist. Atty., Lancaster, for Com.

Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.

ROWLEY, President Judge:

This is a timely appeal by Daniel Nation from a judgment of sentence imposed following his conviction of possession with intent to deliver cocaine. Appellant argues that the trial court erred in refusing to suppress evidence as fruit of the poisonous tree. In support of this argument, appellant has presented two issues for our review:

1) whether a search warrant is illegal when, after an arrest on a fugitive warrant, a search warrant is requested that lists as probable cause the facts of the fugitive status of the arrestee, and identifies as items to be searched for, documentation of aliases and movement of the fugitive; and

2) whether the first search warrant was facially deficient since it failed to provide any substantiated basis to believe that the desired documents would be found at the location to be searched.

Having thoroughly reviewed the record and considered the arguments presented, we vacate the judgment of sentence and remand this case for a new trial.

I. FACTUAL HISTORY

The scope of review of a suppression court's denial of a motion to suppress is firmly established.

The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant's rights. The burden of proving the admissibility of the evidence lies on the Commonwealth's shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 323(h). On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court's findings of fact. Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); and see Commonwealth v. Burgwin, 254 Pa. Super. 417, 386 A.2d 19 (1978) (Opinion in Support of Reversal, per Price, J.).

In considering whether the record supports the court's finding of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. O'Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978); Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Seibert, 274 Pa.Super. 184, 418 A.2d 357 (1980). In addition, where the suppression court's findings are amply supported by the record they may not be disturbed on appeal. Commonwealth v. O'Bryant, supra; Commonwealth v. Bundy, supra; Commonwealth v. Seibert, supra.

Commonwealth v. Eliff, 300 Pa.Super. 423, 428-29, 446 A.2d 927, 929-30 (1982). In the instant case, the defense presented no witnesses at the suppression hearing, and the Commonwealth's evidence remained uncontradicted.

In light of the foregoing standard of review, the facts of the instant case are as follows. In late July, 1989, an unidentified tenant of the Covered Bridge Apartments informed Officer Donald Metzger that a fellow tenant, Herbert Curtis, was wanted by law enforcement authorities in Maryland on a charge of murder. S.T. 1/10/90, at 10-11, 38-39. Officer Metzger, who is a Hempfield Township police officer and a member of the county's drug task force, contacted the manager of the Covered Bridge Apartments, looked at the lease signed by Curtis, and copied down Curtis' date of birth. S.T. 1/10/90, at 40.

He ran a computer search for outstanding warrants issued for Herbert Curtis but found none. S.T. 1/10/90, at 37. Officer Metzger spoke again to the unidentified tenant, who informed him that Herbert Curtis also used the last name of "Brown." Officer Metzger ran a computer search for outstanding warrants issued for a person named Brown who had the date of birth which he copied from the lease. This search revealed that an outstanding warrant had been issued for Daniel Brown, who was wanted for a parole violation following a second degree murder conviction in Maryland. Officer Metzger then telephoned Trooper Johnson of the Maryland State Police, Fugitive Unit, who faxed him a list of Daniel Brown's aliases along with Daniel Brown's photograph and fingerprints. S.T. 1/10/90, at 11, 27, 41-42. However, the latter two items were nearly unreadable. S.T. 1/10/90, at 27, 41. Officer Metzger contacted the Lancaster City Police who gave him a photograph and fingerprints of Daniel Brown and told him that Daniel Brown had legally changed his name to Daniel Nation. S.T. 1/10/90, at 41-42.

On August 2, 1989, at 5:14 p.m., Officer Metzger and Detective Walters went to the Covered Bridge apartments. They observed appellant, who was accompanied by a black female, drive into the parking lot in a Mercury Topaz. Appellant's features were similar to those in the photograph of Daniel Brown. The officers advised appellant that he was wanted as a fugitive from justice by the State of Maryland. The officers asked appellant to go back to the police station with them, and he agreed. At the station, the officers observed that appellant's fingerprints appeared to match those of Daniel Brown. While in custody, appellant admitted that he was Daniel Nation. S.T. 1/10/90, at 12, 29. Appellant was placed in the Lancaster County jail.

On August 3, 1989, at 2:30 p.m., while appellant was in jail, Officer Metzger obtained search warrant No. F-20921 ("Warrant I") to search appellant's apartment for documents verifying appellant's identity and aliases and/or pertaining to appellant's movements while he was a fugitive. The affidavit of probable cause for the warrant stated as follows:

# 1 That Daniel Brown also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis is wanted by the State of Maryland for Parole Violation and is wanted on a bail forfeiture for failing to appear on charges in the State of Maryland. Daniel Brown has an extensive criminal history that included a conviction for 2nd degree Murder and violations of the Maryland drug laws. Daniel Brown has been wanted by the State of Maryland on warrant(s) since Feb., 1989. An investigation by the East Hempfield Twp. Police Dept. revealed that Daniel Brown was living at N 2056 Swarr Run Rd., East Hempfield Twp. a unit of the Covered Bridge Apt. complex. Brown rented the Apt. using the name; Herbert Curtis, he indicated that he would reside there with a Terry Cohen, to date nothing is known about Terry Cohen. Daniel Brown was arrested by the affiant and others on 2 Aug., 1989 as he arrived in a vehicle at the Hempfield Twp. Apt. At the time of the arrest Brown had identification in the name; Herbert Curtis.

# 2 Although Brown has admitted his name, and is charged with Fugitive from Justice, it is felt that additional documentation as to his variety of names, and his movements will assist in determining his intent as a fugitive and the extent that he went to remain so.

Affidavit, 8/3/89 (emphasis supplied). Warrant I authorized the police to search for:

Any documentation that tends to affirm the identity of Daniel Brown, also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis. Any documentation that tends to show the movements of the above subject while wanted on warrants by the State of Maryland.

Warrant I, 8/3/89.

On August 3, 1989, at 2:45 p.m., Officer Metzger, accompanied by Detectives Walters and Blatt, who are also members of both the Hempfield Township police department and the Lancaster County Drug Task Force, executed Warrant I. They found numerous papers bearing the names of Daniel Nation, Daniel Brown, and Herbert Curtis. S.T. 1/10/90, at 16. While searching a closet, the officers discovered a box containing drug paraphernalia. The officers immediately stopped the search, and while Detectives Walters and Blatt remained at appellant's apartment, Officer Metzger obtained search warrant No. F-20923 ("Warrant II") to search appellant's apartment for controlled substances, drug paraphernalia, and assets related to the sale of drugs. The probable cause belief for Warrant II was as follows:

During the execution of a legal Search Warrant, issued on August 3, 1989 by District Magistrate Richard A. Sheetz, Search Warrant No. F20921, this Officer observed Drug Paraphernalia and items used for the manufacturing of Controlled Substances. This officer was looking for documentation when these items were located. Also observed were two (2) locked safes and two (2) locked money boxes, it is believed that documentation relating to the identity of the person and documentation of Drug Assets and Controlled Substances are in the boxes and safes.

Affidavit 8/3/89. On August 3, 1989, at 4:23 p.m., the officers executed Warrant II and discovered, among other things, $108,934.00 in United States currency, over 1,000 grams of cocaine, a $100.00 counterfeit bill, a .25 caliber handgun, and various drug paraphernalia.

Appellant was arrested and charged with possession with intent to deliver cocaine. He filed a motion to suppress, as fruit of the poisonous tree, the evidence seized pursuant to Warrant II. Following the denial of his suppression motion, appellant was convicted in a non-jury trial of possession with intent to deliver cocaine. Post-trial motions were also denied, and appellant was sentenced to seven to twenty years imprisonment.

II. FUGITIVE STATUS

As a person whose parole was revoked...