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decided: January 19, 1973.
COMMONWEALTHv.JACKSON, APPELLANT
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, No. 15, in case of Commonwealth of Pennsylvania v. Bernard Jackson.
John Edward Sheridan, for appellant.
Robyn Greene, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Pomeroy.
[ 450 Pa. Page 418]
Appellant, Bernard Jackson, was indicted for the murder of Charles Davis and, on February 25, 1972, entered a plea of guilty. Following certification by the Commonwealth that the charge rose no higher than voluntary manslaughter, an on-the-record colloquy was conducted, as required by Pa. R. Crim. P. 319. Having concluded "after inquiry of [appellant] that the plea [was] voluntarily and understandingly made",*fn1 the trial court accepted appellant's plea and found him guilty of voluntary manslaughter. Appellant was sentenced to 1 1/2 to 7 years imprisonment. This direct appeal followed.
[ 450 Pa. Page 419]
Appellant's principal contention*fn2 is that the trial court erred in accepting his guilty plea because certain evidence, presented by stipulation, indicated a possibility of accidental homicide or self-defense, rather than voluntary manslaughter. Specifically, appellant urges that his statement to the police included in the stipulation, suggests that he unintentionally fired the weapon. Review of the colloquy, however, satisfies us that the trial judge properly determined that appellant pleaded guilty with an understanding of the nature of the charge and how his acts constituted the offense with which he was charged.*fn3 We affirm.
The trial court conducted an extensive colloquy*fn4 in order to assure itself that there was a factual basis for
[ 450 Pa. Page 420]
the plea. The following inquiry, by the court, appears on the record.
"Q. In this case, you would be admitting, by entering a plea of guilty to voluntary manslaughter, that on April 25, 1970, in Philadelphia, you unlawfully and deliberately and wilfully killed Charles Davis. In this case, you would be admitting, as I understand the evidence from having conferred with the District Attorney and your attorney together, you would be admitting that you shot Charles Davis, which caused his death. Now, your plea of guilty to voluntary manslaughter would be an admission that you shot him deliberately and intentionally. Do you understand that? A. Yes, sir. Q. By pleading guilty to this charge, you would be admitting that the shooting and death were not accidental. You would also be admitting that the shooting and death were not done in the course of you defending yourself from serious bodily harm or a threat of death against yourself by Charles Davis. Do you understand? A. Yes, sir. Q. By pleading guilty you are giving up both those defenses, the defense of saying the killing was accidental and the defense of saying you were acting to protect yourself from serious bodily harm or death. Do you understand that? A. Yes. Q. By pleading guilty to the crime of voluntary manslaughter you are admitting that you deliberately and wilfully shot Charles Davis, knowing that the shooting could cause serious bodily harm or death. The element that reduces the crime from murder to voluntary manslaughter is the fact that the circumstances may have provoked you in some way, causing you to be angry or outraged by something that in some way existed. Nevertheless, even with that indication, the plea of guilty admits you deliberately shot him, knowing it could cause him serious bodily harm or death. Do you understand? A. Yes, sir."
[ 450 Pa. Page 421]
Following this inquiry, the evidence stipulated by defense counsel in appellant's presence, was presented. This evidence included a statement appellant made to the police in which he implied that the shooting was accidental or in self-defense. Because of the possible inconsistency between appellant's statement to the police and his guilty plea, the trial court, before acting on the tendered plea, questioned appellant again concerning his understanding of the effect of pleading guilty. The court explained: "By The Court: (Addressing the defendant) Q. Mr. Jackson, your statement could be taken to mean, the statement that was just read by the District Attorney, that either you shot in self-defense or that the gun went off unintentionally. However, I told you before I took your plea that your plea of guilty was an admission you were not acting in self-defense, but that you shot deliberately. It was not accidental or an unintentional discharge of the gun. Do you understand that? A. Yes, sir. . . . Q. Mr. Jackson, your plea of guilty is an admission that you intentionally fired the gun, that it didn't go off accidentally or without you meaning for it to go off. It means you meant to fire the gun. It also means in doing that you also intended to shoot the decedent Mr. Davis. It does not necessarily mean you intended to kill him, but it does mean you intended to shoot him, knowing that would cause him at least to be seriously injured if not killed. That's what your plea of guilty means. . . . Your statement could be taken as an accidental shooting or possibly to protect yourself or defend yourself. That's why I asked you, instead of pleading guilty, if you were not acting in a reasonable belief that you were defending your own life, and also that the gun did not go off accidentally, but rather you meant to shoot him, you meant to shoot the decedent, and that's what your plea of guilty means. That's what I took it to
[ 450 Pa. Page 422]
mean. That's the basis on which I will proceed with the case in respect to sentence. . . . But, nevertheless, your plea of guilty means you did shoot Mr. Davis intentionally and you are aware as any reasonable person would be, what the effect of shooting someone with a bullet is, seriously injuring someone. That's what your plea of guilty means. If you persist in your plea of guilty, that's the basis. If it is your position that this was accidental, then that is not consistent with your plea of guilty and you should not plead guilty. You won't be allowed later on, if you maintain your plea of guilty, after I sentence you, to say you didn't mean that, that it was accidental. Do you understand what I have told you? A. Yes, sir."
The record unequivocally reveals that the trial court thoroughly advised appellant that his plea of guilty is an admission that appellant intentionally fired the gun. Moreover, the court carefully explained that a plea of guilty negates any claim of self-defense or accidental shooting. Appellant acknowledged his understanding of the effect of the plea and persisted in his decision to plead guilty.
We must conclude, therefore, that appellant understood the nature of the offense charged and that his admitted acts constituted the offense with which he was charged. This is not a case in which an accused pleaded "'guilty' from one side of his mouth and 'not guilty' from the other side." Commonwealth v. Roundtree, 440 Pa. 199, 202, 269 A.2d 709, 711 (1970). Rather, as the trial court here accurately noted, this is a case "where the defendant by his plea voluntarily and intelligently negates a prior self-serving statement to the police" and admits that the shooting was intentional. Appellant's guilty plea was voluntarily and understandingly entered and properly received by the trial court.
Judgment of sentence affirmed.
[ 450 Pa. Page 423]
Concurring Opinion by Mr. Justice Pomeroy:
I agree that the colloquy conducted by the trial court in this case was exemplary and that the record demonstrates that the guilty plea was properly accepted because the plea was voluntarily and understandingly made. I take exception, however, to the court's assumption (see footnote 3) that, as a matter of law in this Commonwealth, there is a requirement that the trial court make a determination that there is a factual basis for a guilty plea. While I believe that this is not the law, it is my view that this court should impose such a requirement by an appropriate amendment to Rule 319(a) of our Rules of Criminal Procedure.
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March 28, 2012
UNITED STATES OF AMERICAv.JAMES ROBERTS
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.
I. Introduction
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.
II. Factual Background
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 to whether the photos actually depict the van at issue:
Q. Directing your attention to the first page of D-5, the photograph in the top half of the page.
A. Yes.
Q. It appears to be a -- an open door?
Q. Does that look like the door of the van that you stopped on October 7th?
A. No.
Q. And what's different about it?
A. From what I recollect, there was a cutout on the bottom portion. It would actually be lower than the bottom of the door handle. There was a cutout right there.
Q. In this photograph, there appears to be absolutely no pocket or place for anything to be stored on the -- on this door anyway?
Q. Was the door of the van in the stop in this condition on that night?
A. I cannot recall.
Q. Well, did it look like the photograph of -- on D-5; the top photograph?
A. I cannot recall at this time.
Q. Well, you said there was a pocket or a cubby hole there, right?
Q. Do you see one on this picture?
A. No. (Tr. 89:22-91:5) (emphasis added).
At bottom, we simply do not believe Officer Kostick's account of what happened on October 7th.
B. The December 21st Search
Approximately two (2) months after Kostick searched Roberts' van, federal authorities adopted the case. On December 21, 2010, DEA Special Agent Patrick Trainor, relying exclusively on the information provided by Kostick,*fn7 sought and obtained an arrest warrant for James Roberts from U.S. Magistrate Judge L. Felipe Restrepo. (See United States v. Roberts, 2:10-mj-1904 (Dec. 21, 2010), at Doc. No. 1; Tr. 49:2-50:8). That same day, approximately ten
(10) agents and officers executed the warrant, arresting Roberts in front of his house. (Tr. 44:19-22; 56:11-14). At the time of his arrest, Roberts had a young child with him. (Tr. 45:1-5). However, Roberts was "cooperative," not "belligerent or nervous or angry." (Tr. 45:15-18; 53:24-54:5).
During his arrest, Roberts consented, first verbally and then in writing, to the search of his green minivan parked outside the house. (Tr. 54:14-56:1; G-1). According to Detective Francis Kerrigan, one of the agents present at the time, Agent Trainor explained the charges to Roberts and requested his consent to search the van, which Roberts gave. (Tr. 53:8-16). Kerrigan described Roberts as "calm" but concerned about his child. (Tr. 53:17-22). Although the officers were all armed, none had their weapons drawn at the time of Roberts' consent. (Tr. 54:6-13; 57:15-17; 58:12-21). The "Consent to Search" form Roberts signed authorized the agents to search his "1996 Green Minivan, PA TAG: HML-3536" and indicated that Roberts freely gave his consent and was neither threatened nor forced in any way. (See G-1; Tr. 62:13-63:4).*fn8 In Kerrigan's opinion, Roberts understood the form. (Tr. 55:12-16). Having obtained Roberts' consent, agents searched the vehicle and found baggies of cocaine and crack in the center console. (Tr. 46:5-48:5).
As mentioned supra, Officer Kostick's unconstitutional vehicle search on October 7th supplied the sole basis for the December 21st arrest warrant. However, we stress that nothing in the record suggests that anyone involved in the December 21st arrest and consensual search knew about the illegality of the prior search. Indeed, the Defendant does not challenge the sufficiency of the arrest warrant on its face and does not question the conduct of either Agent Trainor, who applied for the warrant, or Judge Restrepo, who issued it.
III. Legal Analysis
The Fourth Amendment protects "against unreasonable searches and seizures." Faced with a motion to suppress, the Government bears the burden of demonstrating the reasonableness of a warrantless search or seizure. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Here, the Government relied only on the testimony of Officer Kostick to meet its burden as to the October 7th search of Roberts and his van. As discussed supra, we do not believe Kostick's story. The objective physical facts, which are not subject to the biases of humans, prove his testimony to be false. We find his entire sequence of events (excessively tinted windows --> traffic stop --> failure to comply with commands --> drugs in plain view on the door --> gun in plain view on the floor) a fabrication, carefully constructed to stay just within the constraints of the Fourth Amendment. As such, the Government has not demonstrated the reasonableness of the October 7, 2010 traffic stop and subsequent search. This stop and search violated James Roberts' Fourth Amendment rights, and we have suppressed the evidence recovered during that search accordingly. (See Doc. No. 41).
Now we must tackle the difficult question of whether this Fourth Amendment violation taints the fruits of the December 21st search to which Roberts consented. Roberts contends it does, while the Government argues that time and intervening events have purged the taint. Because of the flagrancy of the constitutional violation that occurred here, we must agree with Roberts. Time cannot heal all wounds, and it cannot heal this one.
Not all Fourth Amendment violations warrant the suppression of evidence. The Amendment itself says nothing about suppression; rather, the exclusionary rule is a "prudential" doctrine with a singular purpose -- to deter future Fourth Amendment violations. Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citation omitted). And as the Supreme Court recently reiterated, "real deterrent value" is a necessary, but not sufficient, condition for exclusion. Id. at 2427. Instead, we balance the hard-to-quantify social costs of exclusion (suppressing the truth) against its benefits (deterring police misconduct) and exclude the challenged evidence only when the latter outweighs the former. See id. at 2427-28 (cautioning that "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningful' deterrence, and culpable enough to be 'worth the price paid by the justice system.'") (citation omitted). Since we, as a society, have a compelling interest in deterring flagrant police misconduct, the more egregious the violation, the more likely it justifies exclusion. See id. (recognizing that "the deterrence benefits of exclusion 'vary with the culpability of the law enforcement conduct' at issue."). Importantly, our exclusionary rule analysis must account for the conduct of all the officers involved. See Herring v. United States, 555 U.S. 135, 140 (2009) (" In analyzing the applicability of the [exclusionary] rule, Leon admonished that we must consider the actions of all the police officers involved.").
The "purging the taint" or "attenuation" doctrine represents one (of the many) specific applications of general exclusionary rule principles. In essence, "[t]he notion of the 'dissipation of the taint' attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost." Brown v. Illinois, 422 U.S. 590, 609 (1975) (Powell, J., concurring in part). This tipping point depends heavily on the facts of the matter at hand. See United States v. Fox, 600
F.3d 1253, 1260 (10th Cir. 2010) (acknowledging that the "analysis is fact-intensive."); United States v. Conrad, No. 10--2001, 2012 WL 833741, at *5 (7th Cir. Mar. 14, 2012) (acknowledging the "highly fact-intensive nature of the attenuation inquiry.").
The Third Circuit has made absolutely clear that "[c]onsent following an illegal seizure does not in itself purge the taint of the illegality for Fourth Amendment purposes; the government must show sufficient attenuation to causally disconnect the consent from the seizure." United States v. Mosley, 454 F.3d 249, 261 (3d Cir. 2006). Several factors inform our attenuation analysis, including (1) whether Miranda warnings were given, (2) the temporal proximity of the constitutional violation and the subsequent consent, (3) the presence or absence of intervening circumstances, and (4) particularly, the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04; United States v. Luna, 76 Fed. App'x 411, 414 (3d Cir. 2003) (applying Brown factors in tainted consent analysis). Of course, since the attenuation inquiry involves balancing the benefits and costs of exclusion, "[n]o single fact is dispositive." Brown, 422 U.S. at 603. However, "the purpose and flagrancy of the official misconduct . . . is considered the most important [factor] because it is tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct." United States v. Reed, 349 F.3d 457, 464-65 (7th Cir. 2003) (citations omitted). Finally, to avoid suppression, the Government bears the burden of proving attenuation by a preponderance of the evidence. Brown, 422 U.S. at 604; Kaupp v. Texas, 538 U.S. 626, 632-33 (2003); United States v. Pelullo, 173 F.3d 131, 137-38 (3d Cir. 1999).
We now turn to the facts of this case. Before reaching the question of attenuation, we must first ascertain whether Roberts' consent was voluntary. See United States v. Butts, 704 F.2d 701, 705 (3d Cir. 1983) (observing that "a finding of voluntariness 'is merely a threshold requirement for the Fourth Amendment analysis.'") (citation omitted). To do so, we look at the totality of the circumstances, considering variables such as "the setting in which the consent was obtained, the parties' verbal and non-verbal actions, and the age, intelligence, and educational background of the consenting individual." United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (citation omitted).
Here, we have no difficulty finding that Roberts voluntarily consented to the December 21st vehicle search. According to the agents' testimony, which we credit, Roberts was calm and cooperative at the time he gave consent. He consented outside his own house, not at a police station after prolonged interrogation. He consented both verbally and in writing, and he understood the consent form that he signed. Finally, none of the officers had their weapons drawn at the time Roberts consented. Based on the totality of the circumstances, which do not reflect an atmosphere of coercion, we conclude that Roberts consented to the vehicle search knowingly, voluntarily, and of his own free will.
We come now to the heart of the matter, attenuation. First, the parties disagree about whether Roberts was Mirandized before he consented. (Compare Doc. No. 45, at 11 (Roberts was given "full Miranda warnings" prior to his consent), with Doc. No 46, at 16 (Roberts "was neither warned of his Miranda rights nor permitted to consult with an attorney" before he consented)). We have reviewed the record, and it is silent on this issue. Neither party introduced any evidence, testimonial or otherwise, regarding Miranda warnings. Therefore, this factor neither supports nor cuts against exclusion.
Second, regarding the "temporal proximity" and "intervening circumstances" prongs of the attenuation test, the parties disagree on the proper starting point from which to measure. The Government measures from October 7, 2010, the date of Officer Kostick's constitutionally-offensive search. (See Doc. No. 45, at 8-11). In this scenario, over two (2) months passed between the illegality and Roberts' later consent, which weakens the link between the violation and consent. On the other hand, the Defendant measures from the December 21st arrest pursuant to a warrant based on Agent Trainor's affidavit incorporating Kostick's fabricated account of the October 7th search. (See Doc. No. 46, at 15-17). Through this lens, mere minutes separated "the initiation of the illegal arrest and the obtaining of the consent," which would weigh against a finding of attenuation. (Id. at 15). Neither the Government nor the Defendant sought to justify its preferred temporal measuring stick.
On this particular point, we agree with the Government. As discussed supra, the point of the exclusionary rule is to deter police misconduct. The attenuation factors, including "temporal proximity" and "intervening circumstances," are really just clues that help us determine whether the benefits of suppressing certain evidence outweigh the costs. Here, the conduct we wish to deter is Officer Kostick's, not that of the agents who ultimately arrested Roberts on December 21st. Therefore, our purging-the-taint inquiry must center on the events of October 7th. The Defendant implicitly recognizes this, focusing entirely on Officer Kostick's conduct in discussing the "purpose and flagrancy" prong of the attenuation analysis. (See Doc. No. 46, at 17-18).
Using October 7th as the starting point, the "temporal proximity" and "intervening circumstances" attenuation factors weigh against suppressing the fruits of the consensual December 21st search, but only slightly. As the Government points out, over two (2) months elapsed between Officer Kostick's search and Roberts' consent. Apparently, Roberts was not in police custody during this time.*fn9 In addition, the agents who obtained Roberts' consent are different from the officer who committed the earlier illegality. All of this distances the December 21st search from the October 7th violation.
But we cannot ignore the fact that the fruits of the unconstitutional October 7th search provided the sole basis for the December 21st arrest warrant. In this case, there is a direct link from Fourth Amendment violation to arrest to consent. Therefore, by excluding the fruits of the December 21st search, we can reasonably expect to deter the initial (and, as discussed below, flagrant) police misconduct, even though it took place over two (2) months prior to Roberts' consent and before federal authorities adopted the case. Cf. Wayne R. LaFave et al., 3 Crim. Proc. § 9.3(c) (3d ed. 2007) (noting the impropriety of exclusion when "the chain between the challenged evidence and the primary illegality is long" because "the threat of exclusion could not possibly operate as a deterrent.").
Finally, we come to the most important consideration in our analysis, the purpose and flagrancy of the official misconduct. We need not say much. Based on the evidence before us, we have no choice but to conclude that Officer Kostick fabricated a story to justify an illegal search and then told that story in open court. This is exactly the type of egregious misbehavior we hope to deter through the exclusionary rule. In the final balance, we conclude that the social costs of excluding the fruits of the December 21st search are high (as they typically are), but the deterrence value of exclusion is higher.
The Government cites many cases to support the proposition that courts "consistently find[] attenuation where there has been an intervening delay of days or longer and the later consent is otherwise voluntary." (Doc. No. 45, at 9). Maybe so, but the constitutional violations in the Government's cited cases pale in comparison to the violation here. See, e.g., United States v. Schettler, 32 Fed. App'x 14, 15-16 (3d Cir. 2002) (district court described seizure as "technical" in nature); Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 28-29 (3d Cir. 1965) (assuming, without deciding, that the initial arrest was illegal for purposes of attenuation analysis); United States v. West, 453 F.2d 1351, 1357 (3d Cir. 1972) (third party could consent to search of his own car, and defendant did not argue that consent was coerced); United States v. Lopez-Garcia, 565 F.3d 1306, 1316 (11th Cir. 2009) (no indication of any flagrant behavior by anyone involved in defendant's arrest and interrogation); United States v. Shi, 525 F.3d 709, 727 (9th Cir. 2008) (defendant's "unwarned statements were not the product of purposeful or flagrant official misconduct."); United States v. Stark, 499 F.3d 72, 76 (1st Cir. 2007) (the "initial search and seizure was not an egregious violation of the Fourth Amendment."); United States v. Snype, 441 F.3d 119, 135 (2d Cir. 2006) (purpose of illegal entry into third party's apartment, i.e., to arrest defendant for violent robbery, was legitimate); United States v. Perry, 437 F.3d 782, 785-86 (8th Cir. 2006) (illegal vehicle search in curtilage of residence and no misconduct on officer's part); United States v. Martin, 431 F.3d 846, 850 (5th Cir. 2005) (finding "no indication of purposefulness here."); United States v. Gale, 952 F.2d 1412, 1418 (D.C. Cir. 1992) (officer "asked only one improper question.").
As discussed above, the flagrancy of the misconduct plays a paramount role in the attenuation equation. The worse the violation, the greater the need for deterrence. Thus, when faced with a severe Fourth Amendment violation, courts almost invariably refuse to find attenuation. See, e.g., United States v. Rivera-Padilla, 365 Fed. App'x 343, 347 (3d Cir. 2010) (no attenuation, in part because the misconduct "was serious indeed."); United States v. Robeles-Ortega, 348 F.3d 679, 684-85 (7th Cir. 2003) (no attenuation, in part because "the officers literally broke down the door, without exigent circumstances and without a warrant, and at least five agents rushed into the apartment with guns."); United States v. Beauchamp, 659 F.3d 560, 574 (6th Cir. 2011) (no attenuation, in part because the purpose of the stop seemed to be "investigatory"); United States v. Washington, 387 F.3d 1060, 1075-76 (9th Cir. 2004) (no attenuation, in part because officer repeatedly reminded defendant that he could be arrested at any time in order to coerce defendant's consent); United States v. Fox, 600 F.3d 1253, 1262 (10th Cir. 2010) (no attenuation, in part because officer embarked on fishing expedition); United States v. Macias, 658 F.3d 509, 524 (5th Cir. 2011) (no attenuation, in part because the "purpose of the continuing detention was to obtain consent to search the vehicle for the possibility of finding contraband of any sort.").
We do not mean to suggest that every serious Fourth Amendment violation triggers the exclusionary rule, no matter how remote the link between the misconduct and the resulting evidence. Perhaps that was once the law. See Rawlings v. Kentucky, 448 U.S. 98, 110 (1980) (suggesting that "conscious or flagrant misconduct" requires "prophylactic exclusion" of the tainted fruits). Now, the Supreme Court's jurisprudence mandates a more restrained approach to exclusion. See Davis, 131 S. Ct. at 2426-27. But even under the current cost v. benefit rubric, suppression is necessary here. The underlying Fourth Amendment violation is deeply troubling, and that violation led directly (although not immediately) to the December 21st arrest during which Roberts consented to the vehicle search in question. Under the circumstances, we believe the deterrence benefits of suppression outweigh the social costs. As a result, we (and society) must swallow the "bitter pill" of exclusion in this matter. Id. at 2427.
IV. Conclusion For the aforementioned reasons, Defendant's Motion to Suppress (Doc. No. 22) is
GRANTED in its entirety.
Legrome D. Davis
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How to Get Thru the Flu
The GoodRx Pharmacist - November 30, 2016
If you have ever had the flu, you know just how down and out you can feel. Besides feeling like a zombie, the most common symptoms of the flu include chills, fever, cough, sore throat, muscle or body aches, headache or vomiting and diarrhea.
With flu season peaking as early as December, it's important to know the common signs and symptoms, and what can be done to decrease your days spent sick and in bed. See More
Generic Tamiflu Approved In Time for Flu Season
The GoodRx Pharmacist - August 19, 2016
Just in time for flu season this year—if you do happen to get sick, you'll have the option to take the less-expensive generic alternative Tamiflu.
Are you ready? Flu season is concentrated in the fall and winter months (although you can get the flu year round). Flu infections peak during December and March but it can linger into May.
If you've ever had the flu you know how miserable it can be. The flu can keep an otherwise healthy person out of work or school for as long as 2 weeks. See More
5 Exclusive Tips for Back to School Prescriptions
The GoodRx Pharmacist - September 08, 2015
Get those lunches made and set the alarm clocks; school's back in session.
Parents know that a new school year means new clothes, new books, maybe a new backpack—and perhaps a new set of prescriptions. As a pharmacist, I know the school year has started when frustrated parents show up at my store with lots of questions.
The good news is that I can help! Here are 5 helpful solutions for common back-to-school medication issues. See More
Is Tamiflu the Best Flu Med? What Are My Options?
Dr. Sharon Orrange - January 08, 2015
This years flu vaccine was disappointing in its coverage of the influenza strains making folks sick. Because of this, we may have to rely instead on the antiviral medications used to treat influenza. Influenza medications are moderately effective for reducing the duration and severity of influenza when started at the onset of symptoms. These antiviral meds also help reduce the duration of viral shedding, important for limiting spread from person to person. See More
Ten Important Facts to Know for Flu Season 2014-2015
Dr. Sharon Orrange - November 21, 2014
It's been a quiet influenza season so far—very quiet. It's November and Los Angeles, for example, has seen almost no flu activity. This is good but failing to prepare may mean preparing to fail so though we are inundated with info about the flu, here are 10 flu facts you may not know:
- During the month of October, there has been almost no flu activity in Los Angeles County (LAC) and across the country. See More
Shortage of Liquid Tamiflu
Elizabeth Davis - January 09, 2014
There is currently a shortage of liquid Tamiflu, the oral suspension form of the flu treatment for children and adults who have trouble swallowing the capsule. The shortage, according to manufacturer Genentech, is due to high demand, and liquid Tamiflu should be back relatively quickly—by the end of the month according to the posting with the FDA.
The capsules are still available in all strengths (30 mg, 45 mg, and 75 mg), and in an emergency, they can be used to make a compounded liquid mixed by your pharmacist or healthcare provider. See More
Ten Things You May Not Know About Tamiflu
Dr. Sharon Orrange - January 22, 2013
December and January are the high season for flu, and therefore, Tamiflu. Here are some things to know about the pill that may save you from a couple nightmare days.
1. Tamiflu (oseltamivir) has activity against influenza A and B unlike amantadine and rimantadine (Flumadine), which only have activity against influenza A.
2. Tamiflu reduces the time of improvement by 1.3 days (30%) compared to patients receiving placebo. See More
Are All Online Pharmacies Sketchy?
Dr. Sharon Orrange - November 28, 2012
Beware of online pharmacies. Surprisingly, one–fourth of consumers buy prescription drugs online. Fraudulent and illegal online pharmacies offer deeply discounted products so it's tempting to buy your medications without a prescription and at a cheaper price. But wait until you see the real deal.
The Food and Drug Administration (FDA) took action this week against 4,100 Internet pharmacies selling counterfeit and illegal medicines. See More


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After arriving in Deer Lake, you'll head west to Gros Morne National Park, a UNESCO World Heritage Site and the place where geologists proved the theory of continental drift. It was here that the ancient Iapetus Ocean closed up forever, 500 million years ago.
Next, you're off to the famous L'Anse aux Meadows, North America's only known Viking settlement where you can explore reconstructed sod houses and breathe in the crisp, salty air of the Northern Peninsula. Your last destination is a visit to historical Red Bay, Labrador, where over 1500 Basque whalers came to settle during the 1540s.
You will see the northern terminus of the Appalachian Mountains, visit the Grenfell Interpretation Centre, and have prime opportunities for bird watching and wildlife observation. Finally, you'll be going home with an army of new friends, and a unique understanding of the culture and lifestyle that has defined Newfoundland and Labrador for centuries.
click headers below for detailsprint view all
Your Package Includes
- Expert travel advice
- 7 nights' accommodation at select hotels
- 7 day escorted ground transportation (including airport transfers)
- Services of an experienced guide
- Select meals
- Admission to select attractions
- All boat/ferry passes
Departure Dates
- June 4, 18; July 2, 9; August 6; September 3, 2017
7 Night Itinerary
- DAY 1 - Welcome and Orientation: The program begins in the afternoon as we meet you at the airport in Deer Lake, Newfoundland. In the early evening, we begin this Newfoundland and Labrador adventure with an overview of your vacation and perhaps a light hike in Gros Morne. Enjoy the coast and fishing communities. The region is rich with moose, waterfalls, orchids, mountains, songbirds, and wildflowers. The priority for the day is meeting you at the airport and getting you to our comfortable hotel. Tomorrow is when the fun — and your vacation — really begins. Overnight Location: Gros Morne
- DAY 2 - A Billion Years of Geological Wonder: Gros Morne provides one of the world's great geology lessons. As Prince Edward noted, "What the Galapagos are to biology, Gros Morne is to geology." Hence, its United Nations' World Heritage Site designation. This morning we enjoy the gentle 60-minute walk to Western Brook Pond for a 2.5-hour boat journey through a billion years of geological history. The gorge, the mountains, and the glacier-carved valleys viewed during this boat trip have been included among the scenic highlights in Canada's tourism literature for decades. The level trail's highlights include orchids, carnivorous plants, and sometimes moose and caribou. The afternoon features beaches, dunes, spectacular scenery, and more opportunities for sighting caribou and moose.We also take the time to enjoy the region's fishing villages and lighthouses. Overnight Location: Gros Morne
- DAY 3 - A Journey Along the Center of the Earth: Today we travel to the centre of the Earth. More specifically, we visit the Tablelands where an 80 square kilometer slab of the Earth's mantle has been shoved up on land from deep beneath the ocean floor. Some scientists say the Tablelands more closely resemble the surface of the moon than the rest of the Earth. We will visit Parks Canada's Discovery Centre and learn more about this UNESCO site's intriguing history and geology. A poet on our Tablelands walk might claim that we are actually walking on the centre of the earth, while photographers will marvel at the mountains and the visual spectacle of this glacier-carved landscape. This region features a unique collection of plants including high arctic species, southern mountain top varieties, and carnivorous plants that are tolerant of the heavy metal rocks thrust up from deep inside the planet. Our leader will share his in-depth knowledge of the geology and botany with you; or you can simply enjoy the rugged scenery and the local stories. We also take some time to remember the Cambrian period as we show off some of our secret fossil beds. Overnight Location: Gros Morne
- DAY 4 - Whale Watching Lookouts of Southern Labrador: Today we depart Gros Morne and take the dramatic Viking Trail highway north to St. Barbe and the Labrador ferry. Enroute we visit The Arches, where the ocean has carved dramatic tunnels in the limestone rocks. The ferry ride may require an early rise but it is a holiday highlight with whales, seals, icebergs, puffins, and pelagic seabirds all commonly seen (100 per cent average so far). This is a local service and the schedule can be influenced by weather and other factors, but based on our previous years of experience, it is likely we will have a relaxing and memorable drive with time to watch for wildlife and to enjoy the mountains. We always spend some time outside during the 90-minute ferry ride to view the marine wildlife and to enjoy the scenery. This voyage is often included among listings of the planet's best pelagic seabird watching trips but you don't need to be a birder to enjoy the sights. This evening we have the option of sampling the delicious flavors of Labrador's berries and seafood. Overnight Location: L'Anse-au-Clair, Labrador
- DAY 5 - Ancient Whalers and the Oldest Burial Mound in the New World: Today we visit Red Bay — the 16th century's whaling capital of the world. Less than 50 years after Columbus, this little-known part of North America had a population of over 1500 European people whereas areas like Boston and New York were still wilderness. We visit the interpretation centre, and weather permitting, we catch a boat ride to the actual dig site where we explore the trails walked by the Basques almost five centuries ago. The new world's first written documents originated here with ships' manifests, whalers' wills, and other poignant remembrances of this past era being recorded and preserved. Our local leader is delighted to share this history and sense of place with you. We also visit Canada's second tallest lighthouse at Point Amour. Another highlight is the oldest burial mound in North America — older than the pyramids. The entire Labrador Straits area is rich in birds of prey, wild flowers, and fossils. Everyone with a camera will want to try to capture the sweeping seascapes and the dramatic colours the sea itself takes on in this wild place. Our leader will show you the coastal sites where the land-based whale and seal watching is amazing. Overnight Location: L'Anse-au-Clair
- DAY 6 - Viking Tales and Northern Trails: Today we travel to Blanc Sablon, Quebec and take the Labrador ferry back to Newfoundland. Along the way we get our last look at Labrador's whales, seabirds, lighthouses, and seals. Once we arrive in St. Barbe, Newfoundland we travel to L'Anse aux Meadows to visit the only authenticated Viking site in North America. From here we can look out at Belle Isle which is the northern extreme of the Appalachians in North America. The ground where you stand (and where the Vikings stood 10 centuries ago) is the most northerly portion of Appalachia, the backbone of this continent. Now we relive the early Middle Ages as Parks Canada with its historic enactors and recreated boats and buildings bring the story of the Norse in the New World to life. The staff of Wildland Tours works with Parks Canada to share the story of the families, researchers, and modern explorers who contributed to both the discovery of this site and to humanity's knowledge of this long forgotten epic. Tonight we sometimes rejoin the historic enactors for a Viking feast in a great sod-covered hall overlooking the headland frequented by Lief Ericson over 10 centuries ago. We can also consider a boat trip to look at dolphins, whales, and wildlife off the dramatic coastline. In June and July we often see icebergs in this area too. Overnight Location: St. Anthony
- DAY 7 - Ancient Peoples on a Rich Coast: Today we explore St. Anthony for an hour or two before returning to Deer Lake and on to Corner Brook for the night. St. Anthony on the northern tip of Newfoundland was the staging point for many northern expeditions. Arctic explorers used its sheltered harbour to take on sled dogs and other supplies as the world raced for the North Pole. Another St. Anthony highlight is the Grenfell Interpretation Centre. In 1892 a young English doctor visited St. Anthony and founded the Grenfell Mission in order to bring medical aid to the native and fishing families along the coast of Newfoundland and Labrador. We visit the interpretation centre that tells the inspiring story of Dr. Grenfell — friend to Kings and Presidents — and we visit his actual home. Step back to the early days of the 20th century and enjoy the tales of dog teams, hardships, courage, and innovation that surrounded Dr. Grenfell. We also stop to explore the Maritime Archaic Indian exhibit at Port au Choix National Historic Park. This is the last archaeological site we visit on this holiday which is considered by some experts to be North America's most diverse archaeological adventure. Learn about the trade, art, and artifacts of the ancient people that occupied this site 3,500 years ago. Overnight Location: Corner Brook (Newfoundland's second city)
- DAY 8 Farewell to Sea and Sky: If your schedule permits you can explore some of Corner Brook from your well-located hotel. Your leader will have other exciting options for you to consider.
Pricing Details
- Departure City
- 7 Night
- Land Only Portion
- $3,300
- Your Package Includes


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Consumer Reviews of RUUD furnaces
Very Satisfied
Somewhat Satisfied
Somewhat Unsatisfied
Very Unsatisfied
Read more about RUUD furnaces
Read reviews of other Furnace brands
Reviews by Series
- Achiever (5 reviews)
- Achiever 90 Plus (13 reviews)
- Silhouette II (2 reviews)
Quality Leads? Learn more
Date created: 2007-04-11
Name: E. Bliske
Location: Appleton, Wi
Years owned: 6
Satisfaction Rating:
I owned my rudd for 6 years and it is totally shot! the blower is totally shot and the inside is totally rusted out! What a piece of junk!
Date created: 2007-02-13
Name: PJ
Location: Denver, CO
Years owned: 14
Satisfaction Rating:
Had to replace mother board the second winter! (And had to fight with Rhudd in order to get them to replace it) And have had expensive repair work done ever since. Changing filters is a nightmare...stupid placement makes changing extremely difficult. Had to replace the capacitor motor...flame sensor has to be cleaned WAY too frequently...EXTREMELY noisy unit! I should have bought another furnace the first time I had problems with this one. Repair one thing, another falls off! I will NEVER even consider another Rhudd...which I know call KRudd! I've NEVER had such problems with a furnace.
Date created: 2007-01-21
Name: J. McElroy
Location: North-Central Iowa
Years owned: 12
Satisfaction Rating:
The Heat exchanger went bad in a furnace less than 12 years old. We would not have known this if it had not been for our Carbon Monoxide detector. After contacting the company, when this model was produced, it only came with a 10 year warranty on the exchanger. Not only does this furnace sound like a jet taking off a carrier, but it has a dramatic tempurature drop even before the problems started.
Date created: 2006-12-07
Name: Mo
Location: Lebanon, OH
Years owned: 16
Satisfaction Rating:
While I know everything will not last forever, I expected a little more from a good company. I had to replace the heat exchanger about 6 years ago and now the burner is shot. A replacement burner can no longer be purchased. Obviously, this must have been a poorly designed part that Ruud eventually bagged.
Date created: 2006-09-22
Name: JOHN R. TUCKER
Location: COLORADO SPRUNGS CO
Years owned: 5
Satisfaction Rating:
Bought a RUUD 75,000 BTU 92% A.F.U.E. upflow in Aug 2001. Never have had a problem at all with it.
Date created: 2006-08-23
Years owned: 7
Satisfaction Rating:
(No review submitted)
Date created: 2006-08-23
Years owned: 7
Satisfaction Rating:
(No review written)
The opinions expressed in these reviews are the opinions of consumers that submitted reviews to FurnaceCompare.com. They do not necessarily represent the opinions of FurnaceCompare.com.


text:
There are millions of Internet-Servers daily hacked from the same hand full of Hackers.
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Thu, 08 Dec 2016 00:13:00 GMT - Actual more as 21.000.000 Hackers in our Database. (The newest 100 are displayed on the Globe and Map)
Detail informations for IP
WebServer Output: http://220.127.116.11
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Krishan कृष्णा
A truly epic moment in the Mahabharat - a war between the Pandavs and Kauravs, the battle that takes place in our own minds on a daily basis. As Bhishma was about to kill Arjuna with his arrows, Lord Krishna threw down the chariot reins and jumped off the chariot onto the battlefield, lifted a chariot wheel and charged Bhishma. Arjuna tried to stop Lord Krishna, but the Lord said, "In order to protect my devotee, I must break my promise to use weapons.
#Krishna #Janmashtami celebrates the birth of Krishna, and is celebrated differently across India. While elaborate dramas and plays are the norm in Mathura and Vrindavan, people from Odisha and Bengal usually fast the previous day. In Tamil Nadu, beautiful kolams are created and a young boy is often dressed up as Krishna. However, the most enthusiastic celebrations are probably in #Maharashtra, with young men climbing atop human pyramids to break the hanging pot full of buttermilk!
appearance of Lord Krishna
Krishan Radha painting
हरे कृष्णा हरे कृष्णा
My Art Work... Lord Krishna
Lord Krishna
I am in all beings. Krishna
Mahabharatham - The Great Indian Epic...


text:
THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Learn about this topic in these articles:
difference equation
mathematical equality involving the differences between successive values of a function of a discrete variable. A discrete variable is one that is defined or of interest only for values that differ by some finite amount, usually a constant and often 1; for example, the discrete variable x may have the values x 0 = a, x 1 = a + 1,...


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It's not only the Khanna family who expressed their displeasure over veteran actor Naseeruddin Shah's comment on late superstar of Bollywood Rajesh Khanna but noted lyricist and scriptwriter Javed Akhtar also criticises Naseeruddin Shah for disrespecting Rajesh Khanna. Taking a dig at Shah
Kal Tak with Javed Chaudary 5 December 2011
See the reality why Javed Chauhdry's Program Kal Tak was not broadcast on 6 December 2011. On 5 December Part 1 of the program was on aired, part 2 was to be broadcast on 6 December 2011, but Express News didn't on aired the program as shiites of Pakistan started protesting, because a shiite scholar agha mazhar mashadi all those as non muslims who disgrace the blessed companions of Holy Prophet Peace Be Upon Him, he was left answer less by the top debator of Ahlus Sunnah Wal Jamaaa Mufti Haneef Qureshi (HifdULLAH). Shia scholar said: Anyone who abuses Hadrat Abu Bakr Siddique RadiALLLAH ta'ala Anhu is APOSTATE, Anyone who abuses Hadrat Umar bin Khattab RadiALLLAH ta'ala Anhu is APOSTATE, Anyone who abuses Hadrat Usman al Ghani RadiALLLAH ta'ala Anhu is APOSTATE, Anyone who abuses Hadrat Ali Alihe Salam Anhu is LA'ANATI. Kya waja thee kay express news nay program kal tak on air na kia ?
javed akhtar
7th Royal Stag Mirchi Music Awards was held on 26th February at Yash Raj Studio in Mumbai. It was a star-studded affair, with the presence of several musicians and Bollywood celebrities. Javed Akhtar was honoured with Lifetime Achievement Award. Any music event would be incomplete without
Javed Akhtar is one of Bollywood's most prolific, respected and admired lyricists. This multiple award winning script writer and poet enjoys the kind of success and popularity that only few have achieved in tinsel town. His lyrics add magic to the melody and feel of a song, which is why Javed Akh


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Dave Grohl Rumored to Be Working on New Album
An encounter between a fan and Dave Grohl tells us that he is working on a new project.
An encounter between a fan and Dave Grohl tells us that he is working on a new project.
'From Cradle to Stage' sees Virginia Hanlon Grohl talking with the mothers of Michael Stipe, Amy Winehouse and more about raising their famous children.
Dave Grohl's mother will soon release 'From Cradle to Stage,' a collection of stories from the mothers of music's biggest names.
During Prophets of Rage's encore, Dave Grohl showed up with his guitar and stepped behind a mic for a cover of MC5's 'Kick Out the Jams.'
The members of Korn witnessed another fan wedding proposal in Toronto. Meanwhile, it's been revealed that Dave Grohl visited the band in the studio.
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August 20, 2010
DAVID PALMER, PLAINTIFF,v.SAMUEL NASSAN, THE PENNSYLVANIA STATE POLICE, TERRENCE DONNELLY, SHEILA LADNER, AND CITY OF PITTSBURGH, DEFENDANTS.
Before the Court is defendants' Partial Motion to Dismiss filed on behalf of defendants Samuel Nassan and the Pennsylvania State Police. Plaintiff, who originally brought this § 1983 lawsuit in the Court of Common Pleas for Allegheny County, contended that these defendants violated his Fourth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. See doc. no. 1-1, ¶¶ 27, 36, 45, 53, 59. Plaintiff also asserted a claim for battery against the individually named defendant Nassan. Id., ¶¶ 21-25.
After removing the case to this Court, defendants filed this Partial Motion to Dismiss suggesting that certain claims asserted against defendants Nassan and the Pennsylvania State Police should be dismissed. For the reasons set forth in greater detail below, the court will grant in part and deny in part the defendants' partial motion to dismiss.
I. Standard of Review
In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds on which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 at 570)). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Therefore, when deciding a motion to dismiss under Rule 12(b)(6), we apply the following rules. The facts alleged in the complaint, but not the legal conclusions, must be taken as true and all reasonable inferences must be drawn in favor of plaintiff. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555. We may not dismiss a complaint merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 556, 563 n.8. Instead, we must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. In short, the motion to dismiss should not be granted if plaintiff alleges facts which could, if established at trial, entitle him to relief. Id. at 563 n.8.
It is on this standard that the Court has reviewed defendants' Motion. Each of defendants' five basis for a partial dismissal will be discussed seriatim.
II. Discussion
A. Plaintiff's Battery Claim and Defendant's Sovereign Immunity (Count I)
Defendant Nassan contends that 1 Pa.C.S.A. §2310 provides sovereign immunity for Commonwealth employees such as himself. Although there are nine (9) exceptions to this immunity defense, battery is not among them. However, the plaintiff's complaint impliedly suggests that the actions constituting a battery taken by defendant Nassan removed him from his scope of employment as a Commonwealth employee and thus, from the protection of sovereign immunity as codified by 1 Pa.C.S.A. §2310.
This Court takes note that the conduct of an employee is within the scope of employment only if: (1) it is of a kind that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is calculated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, it is not unexpected by the employer. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000), citing Restatement (Second) Agency § 228. This Court also notes that in Revak v. Lieberum, 2008 WL 4858291 (W.D. Pa., 2008), the Court determined that plaintiff's complaint specifically and repeatedly alleged that the individual defendant acted outside the scope of his employment and thus, plaintiff's battery claim survived a motion to dismiss.
Given that plaintiff's complaint in this case merely implies that defendant was acting outside the scope of his employment (see doc. no. 1-1, ¶22) and based on the above-cited law, we will grant defendant's motion as to this claim, but will allow plaintiff to file an Amended Complaint with more specific assertions.
B. 8th Amendment Allegations (Counts II and III)
The Eighth Amendment "was designed to protect those convicted of crimes and consequently the Clause applies only after the State has complied with constitutional guarantees traditionally associated with criminal prosecutions." Whitley v. Albers, 475 U.S. 312, 318 (1986)(citation and internal quotations omitted). Thus, the Eighth Amendment's Cruel and Unusual Punishments Clause does not apply until "after sentence and conviction." Graham v. Connor, 490 U.S. 386, 392 n. 6, (1989). See also, Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (footnote omitted).
Given the case law set forth above and plaintiff's failure to respond to this argument, the Court will grant defendant's motion to dismiss the Eighth Amendment claims set forth in Counts II and III. Plaintiff is instructed to remove these assertions from his Amended Complaint.
C. Excessive Force Claims and the 14th and 4th Amendments (Counts II and III)
Defendant contends that under Graham v. Connor, 490 U.S. 386 (1989) the plaintiff may not raise a separate Fourteenth Amendment (substantive due process) claim for the alleged excessive force utilized against plaintiff. Indeed, the Graham Court specifically concluded:
Today we make explicit what was implicit in [Tennessee v.] Garner's analysis, and hold that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach.
Id. at 395.
However, the United States Court of Appeals for the Third Circuit has noted that courts should apply the Due Process Clause of the Fourteenth Amendment to protect pretrial detainees from excessive force. See, Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3rd Cir. 1990) (Fourteenth Amendment applies when plaintiff is a pretrial detainee). As noted in Bieros v. Nicola, 860 F.Supp. 226, 231 (E.D. Pa. 1994), although a pretrial detainee has been defined as a person charged but not yet convicted of a crime, (see, Bell v. Wolfish, 441 U.S. 520, 523, (1979)), it is not clearly defined when an arrest ends and pretrial detention begins.
Based on the case law cited above, in this case, it is premature to address the specific constitutional right defendants' conduct is alleged to have infringed, and, accordingly, too early to dismiss a claim brought under the Fourteenth Amendment.
As such, this claim will be denied.
D. Who is a "Person" Under § 1983 (Counts II and III)
Defendants next contend they are not "persons" for purposes of Section 1983 because they have been sued in their "official capacities" and thus, must be dismissed as parties to this lawsuit.
... [I]n any §1983 action the initial inquiry must focus on whether the two essential elements to a §1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Parratt v. Taylor 451 U.S. 527, 535 (1981).
In Kentucky v. Graham, 473 U.S. 159 (1985), the Court sought to eliminate lingering confusion about the distinction between personal- and official-capacity suits. The Court clarified and expounded upon its holding in Kentucky in Hafer v. Melo as follows:
We emphasized [in Kentucky] that official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. Suits against state officials in their official capacity therefore should be treated as suits against the State. Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, on the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. While the plaintiff in a personal-capacity suit need not establish a connection to governmental policy or custom, officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. The phrase "acting in their official capacities" is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.
See, Hafer v. Melo,502 U.S. 21, 25-26 (1991) (internal citations and quotations omitted).
Based upon the facts pled by plaintiff in Counts II and III of his Complaint, plaintiff has sufficiently asserted claims against defendant Nassan in his personal and official capacities (see Doc. No. 1-1, ¶¶ 22-24, 27-28, 30-37), and thus, defendants' motion in this respect will be denied.
However, as noted by the United States Court of Appeals for the Third Circuit in Beck v. City of Pittsburgh:
When a suit against a municipality is based on § 1983, the municipality can only be liable when the alleged constitutional transgression implements or executes a policy, regulation or decision officially adopted by the governing body or informally adopted by custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Thus, although the municipality may not be held liable for a constitutional tort under § 1983 on the theory of vicarious liability, it can be held responsible as an entity when the injury inflicted is permitted under its adopted policy or custom. Id. at 694. 89 F3.d 966, 971 (3d Cir. 1996).
Based on the foregoing law, and analogizing a municipality to the State agency at issue here, the Court finds that plaintiff needs to more specifically allege whether the Pennsylvania State Police implemented or executed a policy, regulation or decision -- officially adopted or informally adopted by custom -- which in turn led to the alleged constitutional transgressions. Plaintiff will be given time to file an Amended Complaint in this regard.
E. 11th Amendment Immunity for Defendants Sued in their Official Capacities
Defendants correctly note that the Eleventh Amendment immunizes states, state agencies, and state officials acting within their official capacities, from monetary damages. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). However, as noted above, state officials may still be held personally liable for damages under § 1983 for actions taken under color of state law. See, Hafer v. Melo, supra.
In light of the fact that this Court shall give plaintiff time to amend his Complaint to more specifically allege whether defendants acted outside of their official capacities, deciding this issue would be premature and is, therefore, denied as moot.
AND NOW, this 20th day of August, 2010, upon consideration of defendants' Partial Motion to Dismiss the Complaint and brief in support thereof (doc. nos. 3 and 4), and plaintiff's response and brief in opposition thereto (doc. nos. 10 and 11):
IT IS HEREBY ORDERED that defendants' Partial Motion to Dismiss is GRANTED IN PART with respect to plaintiff's Eighth Amendment claims. IT IS FURTHER ORDERED that defendants' Partial Motion to Dismiss is GRANTED IN PART as to: (1) plaintiff's battery claim asserted against Defendant Nassan, and (2) plaintiff's §1983 claims asserted against defendant Pennsylvania State Police, but plaintiff is given leave to correct the deficiencies in these respects. Defendants' Partial Motion to Dismiss is DENIED in all other respects.
IT IS FURTHER ORDERED that plaintiff file an Amended Complaint on or before August 30, 2010 addressing those matters noted above. Defendant may file a responsive pleading to the Amended Complaint on or before September 8, 2010. If Defendant files a renewed Motion to Dismiss, plaintiff's response to same shall be due on or before September 14, 2010.
SO ORDERED this 20th day of August, 2010.
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