Police Search Trash and Secure Evidence for Trial -Suppression Denied

Depending from where a homeowner’s trash is removed and what arguments are raised on suppression, evidence derived from these trash pulls is admissible in court. Commonwealth v James, 2013 Pa. LEXIS 1096 (May 31, 2013) evidences when inexperienced counsel make incorrect arguments which allow the Commonwealth to fix their otherwise faulty case, your better off with trained legal counsel.

On April 11, 2007, based upon an anonymous tip, police search the garbage from Darrell Tyrone James PA residence, discovering drug paraphernalia, marijuana and cocaine residue. We do not know from where the trash was pulled.  The police investigation further reveals James’ five prior narcotics arrests and one firearms violation conviction. A confidential informant (“CI”) subsequently told police James was selling drugs from his house. Police surveillance was conducted, revealing individuals coming and going from the residence in brief increments of time and several vehicles pulling up in front of the residence. No drug buys were witnessed or staged with a CI. On April 19, 2007, police conducted a second trash pull of James’ garbage, discovering more drug paraphernalia and residue.

Based upon this information, an affidavit of probable cause is drafted to secure a search warrant to search the residence. James was arrested after the search revealed guns and drugs. James files a Motion to Suppress, arguing the affidavit did not specify from where the trash was actually taken when the police seized it. If the trash was on the curb awaiting collection, it was abandoned, and police could lawfully search it without a warrant; if it was on James’ porch, he retained a privacy interest in it, and the trash pull was unlawful.

The trial court granted suppression due to the factual omission of from where the trash was taken. The Commonwealth argued for reconsideration claiming that because James contested the truthfulness of the allegations in the affidavit, and not just the legality warrant based upon the facts as stated, the suppression court was permitted to receive additional evidence outside of the warrant’s four corners. The trial court reconsidered its ruling and permitted the Commonwealth to augment the affidavit of probable cause with testimony outside the four corners of the warrant. This is a significant procedural fact.

What evidence a judge issuing a search warrant may consider is set forth in Pennsylvania Rule of Criminal Procedure 203. There, that rule, the James Court held, plainly states the issuing authority may not consider evidence outside the affidavit in making the probable cause determination, and the suppression court, in reviewing this determination, may only consider the affidavit. However, since 1973 the Pa Supreme Court has also held that a defendant has the right to test the veracity of the facts recited in the affidavit in support of probable cause. Commonwealth v. Hall, 302 A.2d 342, 344 (Pa. 1973).

In Hall, the court stated, “‘To rule otherwise, would permit police in every case to exaggerate or expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination.'” Id. (quoting Commonwealth v. D’Angelo, 263 A.2d 441, 444 (Pa. 1970)). Accordingly, our Supreme Court has concluded the defendant “at the suppression hearing should have been afforded the opportunity through ‘the traditional safeguard’ of cross-examination, to test the truthfulness of the recitals in the warrant[.]”

This is a Frank’s hearing in federal court, based upon the case of Franks v. Delaware, 438 U.S. 154 (1978), which addressed whether a defendant has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual averments in an affidavit of probable cause. After a defendant makes a substantial preliminary showing the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit, the Fourth Amendment requires a hearing be held at the defendant’s request.

The issue in James became when a defendant in state court challenges both the factual averments in the affidavit and the legality of the affidavit, may the Commonwealth present additional evidence at the suppression hearing upon which the court may rely in rendering a decision. The James Court said yes.

Because the procedural rules specifically require a defendant to state all of his/her basis for suppression, thereby giving the Commonwealth notice of what police behavior it is defending, the Commonwealth typically presents evidence of the affiant at the suppression hearing. Cross-examination may reveal lies, ambiguities, and factual divergences between the testimony and the affidavit as drafted. However, the suppression court is permitted to look at the totality of the circumstances presented in the warrant and to which the officers testified, in conjunction with weighing the credibility of the officer’s testimony, to render a conclusion on the factual and legal validity of magistrate’s action of approving the warrant.

The import of this case is simple: be careful of the legal basis for the relief you seek in court. Had counsel simply argued the four corners motion without alleging officer credibility and lies (a federal Frank’s motion) then the court is only permitted to consider the warrant, which was facially deficient and suppression would have occurred. Once, counsel alleged officer fabrication, the Commonwealth was able to augment the warrant and present its officers testimony at the suppression hearing, which testimony the court properly considered in denying the Motion to Suppress.

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