Commonwealth v. Burgos

• Decision Date: 24 April 2013
• Citation: 2013 PA Super 26,64 A.3d 641
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Edwin BURGOS, Appellee.
• Court: Pennsylvania Superior Court

64 A.3d 641

2013 PA Super 26

COMMONWEALTH of Pennsylvania, Appellant

v.Edwin BURGOS, Appellee.

Superior Court of Pennsylvania.

Argued Oct. 24, 2012.

Filed Feb. 20, 2013.

Reargument Denied April 24, 2013.

Melissa J. Noyes, Assistant District Attorney, Reading, for Commonwealth, appellant.

James M. Polyak, Reading, for appellee.

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

OPINION BY OTT, J.:

The Commonwealth appeals from the order entered on April 3, 2012, granting Appellee's, Edwin Burgos's, motion to suppress all evidence derived from the use of a mobile tracking device (also known as a “global positioning system” or “GPS tracking device”) on Burgos's car, the stop and search of Burgos's car, and the search of the premises located at 630 North Mohr Street, Allentown, Pennsylvania. The Commonwealth asserts the trial court erred in granting the motion based on the following: (1) the court misapplied the holding of United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (decided January 23, 2012) because the officers, in this case, acted within the parameters of the court's authorization of the GPS tracking device pursuant to Section 5761 of the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”) ¹ and they possessed the requisite level of suspicion under the statute; (2) the court erred in applying the search warrant requirements set forth in Pa.R.Crim.P. 200et seq. where none existed under Section 5761; and (3) the court erred in suppressing the evidence where the officers acted in good faith on the existing law at the time of search. See Commonwealth's Brief at 4. After a thorough review of the record, the parties' briefs, and the applicable law, we reverse the court's order and remand for further proceedings.

In addressing Burgos's suppression motion, the court made the following findings of fact:

In October and November 2010, Detective [Todd] Harris [of the Berks County Police Department] was involved in an investigation of cocaine and marijuana trafficking in Berks and Montgomery Counties. The investigation was pursued, in part, through the use of wiretaps. On November 5, 2010, based on information gained, in part, from the wiretaps, Detective Harris and other law enforcement officials executed search warrants. At least two of the searches turned up what the detectives described as high grade marijuana.

Eight individuals were arrested as a result of that investigation; five agreed to cooperate and became confidential informants for Detective Harris. Two of these individuals, designated in the documents as CS # 1 and CS # 2 provided information to the effect that the supplier of the marijuana that had been seized in the earlier search warrants was an individual named “Edwin.” The CS # 1 and CS # 2 described “Edwin's” vehicle and place of residence. CS # 2 further provided [Burgos]'s full name, and both individuals identified a photograph of him.

The informants described in detail how [Burgos] obtains his supply of marijuana by traveling to Georgia and Michigan, and transports it back to Berks County in a hidden compartment in the toolbox of the pickup truck registered to [Burgos].

The information provided by CS # 1 and CS # 2 was corroborated by conversations intercepted in the Court ordered wiretaps, wherein several of the individuals intercepted referred to the supplier of their marijuana as “Edwin.” Police surveillance verified [Burgos]'s residence as being located at 1315 Muhlenberg Street in the City of Reading and that [Burgos] operated a white Dodge Ram pickup truck bearing Pennsylvania registration YVE–1957. Further, the truck had the large toolbox described by CS # 1 and CS # 2, and a check of Pennsylvania Department of Transportation records verified [Burgos]'s address as well as the registration of the pickup truck.

On March 25, 2011, an order authorizing the installation and use of a mobile tracking device was entered, pursuant to 18 Pa.C.S. § 5761. The order authorized the attachment of the device to [Burgos]'s white Dodge Ram pickup truck. On March 28, 2011, the mobile tracking device was successfully placed on [Burgos]'s vehicle. The mobile tracking device enabled Detective Harris and his colleagues to monitor the activities of [Burgos], insofar as his travels were concerned. The search warrant authorizing the search of [Burgos]' s vehicle, which was obtained after a traffic stop on April 4, 2011, sets forth in detail [Burgos]'s movements from the morning of April 2, 2011, until the evening of April 4, 2011. On April 2, [Burgos] traveled from his residence to a home in Allentown, located in the 600 block of North Mohr Street. After leaving that area at 11:05 a.m., [Burgos] made several stops in the vicinity of Allentown, and at approximately 12:56 p.m. the vehicle departed and headed west and south, ultimately stopping near Dublin, Virginia, at approximately 8:20 p.m.

On the morning of April 3, 2011, at approximately 6:03 a.m. the vehicle departed the location in Dublin, and traveled through North and South Carolina and into Georgia, stopping in the area of Midvale, Georgia, at about 12:33 p.m. The vehicle remained at that location until the early morning of April 4, and at 6:22 that morning, [Burgos]'s vehicle moved a short distance. Approximately one-half hour later, the vehicle began to retrace its route north through Georgia, South Carolina, and North Carolina.

During this time period, Detective Harris received a message from CS # 1, who informed Detective Harris that [Burgos] was in South Carolina picking up marijuana to be returned to Berks County, and that [Burgos]'s wife was traveling with him. He also provided further information on the location of the secret compartment in the toolbox of the truck and revealed the fact that tools are required to dismantle it.

The vehicle was traced via the mobile tracking device all the way back to Pennsylvania and visual surveillance on the vehicle began as the vehicle entered the Pennsylvania Turnpike. [Burgos] was under surveillance until he was stopped by Trooper Anthony Todaro, of the Pennsylvania State Police at approximately 9:30 p.m. on Route 222 in southern Berks County. After the vehicle was stopped, the search warrant was obtained, and the vehicle was towed to the Pennsylvania State Police Barracks in the City of Reading and ultimately searched. Among the items found during the course of the search were thirty-four (34) black plastic bags containing marijuana, which had been secreted in a special compartment in the toolbox of [Burgos]'s pickup truck.

Subsequent to the search of the truck, officers obtained an additional search warrant for [the] premises located at 630 North Mohr Street in Allentown, Lehigh County, Pennsylvania. The search was based on information that was developed in the search warrant for [Burgos]'s vehicle, and included information to the effect that on March 28, 2011, [Burgos] traveled from his residence in Reading to the North Mohr Street area, returning that evening. The warrant affidavit for the North Mohr Street residence then repeats the information contained in the warrant for [Burgos]'s vehicle by detailing [Burgos]'s movements from April 2 to the evening of April 4 when the traffic stop of [Burgos]'s vehicle was made. The warrant application included the observation that immediately prior to traveling to Georgia, [Burgos] left his residence, traveled for approximately one hour to reach the 630 North Mohr Street address, where he stayed twenty-seven (27) minutes before leaving on the trek to Georgia. The search warrant for the 630 North Mohr Street address was obtained on April 5, 2011. The averments in the warrant affidavit indicate that the 630 North Mohr Street residence is owned by [Burgos]'s father, and not by [Burgos].

The reliability of the information provided by CS # 1 and CS # 2 was checked and verified in several different ways. First, they were interviewed separately, so that they could not bolster each other's credibility in a group setting, nor tailor their information to match. Second, information obtained during the course of the wiretaps, which would have been unknown to CS # 1 and CS # 2 was consistent with the information they provided to Detective Harris. Third, the investigators conducted surveillance of [Burgos], his residence, and his father's residence. Additionally, both sources having been previously arrested made statements against their penal interest. Finally, during the duration of [Burgos]'s trip to Georgia, CS # 1, who did not know of the surveillance operation, contacted Detective Harris to inform him that [Burgos] was making a trip south to pick up drugs, and that he was accompanied by his wife.

In addition to the aforementioned marijuana, the search of [Burgos]'s vehicle and the persons of [Burgos] and his wife revealed three cellular telephones and approximately one hundred eighty-eight dollars ($188.00) in United States currency. The search of the North Mohr Street residence revealed a cash-counting machine and a box of .38 caliber ammunition.

Trial Court Opinion, 12/14/2011, at 2–5.

Burgos was charged with possession with the intent to deliver marijuana, possession of a controlled substance, and criminal conspiracy.² On September 8, 2011, he filed a motion to suppress, wherein he requested suppression of evidence obtained as a result of the GPS placement and monitoring, evidence seized from his truck, his statement regarding marijuana in the hidden compartment of the truck, and evidence seized from the 630 Mohr Street residence. A hearing was held on October 3, 2011, where the court heard testimony from Detective Harris relating to the traffic stop, the procurement of the search warrant for the vehicle, the results of the search of the vehicle, and the detective's interaction with Burgos.

On December 14, 2011, the court entered an order and opinion, denying Burgos's suppression motion. Specifically, the court found...