Opinion
Criminal Action No. 98-133.
October 31, 1999
MEMORANDUM AND ORDER
A federal grand jury indicted the defendant, Ali Morris ("Morris"), on charges that he possessed "crack" cocaine with intent to distribute on two occasions in violation of 18 U.S.C. § 841(a)(1), and that certain of his property that was seized from him at the time of his arrests should be forfeited pursuant to 21 U.S.C. § 853(a)(1), (a)(2), and (p). See Change of Plea Colloquy ("Colloquy") at 5, 14; Government's Response to Defendant's Motion to Withdraw Guilty Plea Before Sentencing ("Govt.'s Resp.") at 1. On October 1, 1998, the defendant tendered, and the court accepted, his guilty plea to the indicted charges. See Colloquy at 14. Before accepting the defendant's plea, the court conducted a colloquy as required by Federal Rule of Criminal Procedure 11.
On January 21, 1999, at the time of his sentencing hearing, the defendant filed a pro se motion to withdraw his guilty pleas. The government filed an opposition to the motion, and the defendant, this time with the assistance of counsel, filed an amended motion to withdraw his guilty plea. See Defendant Ali Morris' Amended Motion to Withdraw Pleas of Guilty ("Def.'s Am. Mot."). The government filed a brief in opposition to the amended motion. See Government's Response to Defendant Ali Morris' Amended Motion to Withdraw Guilty Pleas ("Govt.'s Resp. Am. Mot.").
On July 22, 1999, in light of the defendant's amended motion to withdraw filed by counsel, the court denied without prejudice the defendant's original motion to withdraw his plea of guilty because it was moot.
The government's response to the defendant's amended motion incorporates by reference its response to the defendant's original motion. See Govt.'s Resp. Am. Mot. at 1-2.
After consideration of the defendant's amended motion to withdraw his guilty plea, the government's response thereto, as well as the supplemental letter briefing submitted by the parties, and after an evidentiary hearing on the issue, the court holds that the defendant has failed to demonstrate any fair and just reason for the court to permit him to withdraw his guilty plea. Therefore, the court will deny the defendant's amended motion to withdraw his guilty plea.
I. BACKGROUND
At the change of plea hearing held on October 1, 1998, at which the defendant entered a guilty plea to 3 criminal counts, the defendant accepted the following factual basis of the government's case, as set forth in the Plea Agreement, and as summarized at the change of plea hearing.
The change of plea hearing was held before the Honorable Joseph L. McGlynn, Jr., of the Eastern District of Pennsylvania. The case was reassigned to this court on February 23, 1999.
The defendant pleaded guilty to three criminal counts.See Colloquy at 14. Counts One and Two charged the defendant with possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and Count Three charged the defendant with criminal forfeiture pursuant to 21 U.S.C. § 853(a)(1), (a)(2), (p). See Colloquy at 14; see also Def.'s Sentencing Memo. at 1.
A. Factual Basis of Count One
On June 23, 1997, at approximately 2:00 a.m., Philadelphia Police Officer Christopher Grandison went to 6806 Old York Road in Philadelphia in response to a radio call concerning a domestic disturbance. See Colloquy at 12; Def.'s Am. Mot. at 1. At that address, Officer Grandison met Chanel Barnes, who was the defendant's girlfriend at the time. See Colloquy at 12. Grandison followed Barnes to the third floor apartment which she shared with the defendant. See id. Barnes told Grandison that the defendant was a drug dealer. Barnes then gave Grandison and his partner five clear plastic bags, which contained a substance that appeared to be crack cocaine. See id. at 13. The police officers then arrested the defendant and seized $2,100 in cash from his person. See id.; see also Govt.'s Sentencing Memo. at 5. Laboratory tests later confirmed that the substance seized by the officers was crack cocaine.See Colloquy at 14.
Barnes is currently the defendant's wife, having married him the day before she was scheduled to testify against him in a grand jury proceeding.
In his amended motion to withdraw, the defendant contests that he resided at this address on June 23, 1997. See Def.'s Am. Mot. at 2. At his change of plea hearing, however, he did not contest this fact. At the hearing, the United States Attorney read the following statement to the defendant: "[Officer Grandison] met [at 6806 Old York Road in Philadelphia] Chanel Barnes with whom Mr. Morris shared the apartment on the third floor at that address." Colloquy at 12. After the statement of facts, which included this statement, was read into the record, Judge McGlynn explained: "Mr. Morris you can either state now for the record if you have any disagreement with the facts as stated by the U.S. attorney, or you can inform the probation officer when he comes to interview you on your version of the facts if they differ from what was stated here today; do you understand that?" Id. at 14. The defendant responded in the affirmative.See id. The court has no information that the defendant later contested his residence in the apartment to his probation officer.
B. Factual Basis of Count Two
On September 11, 1997, Philadelphia Police Officers Marcus Kirkland and Andrew Jericho stopped the defendant after observing him violate traffic laws. See Colloquy at 13. Before the defendant was stopped by the police, the officers saw him place a jacket in the back seat of the car. See id. When the officers approached the car, they could see the jacket in the back seat and they observed in plain view a container of what they believed to be crack cocaine in the pocket of the jacket. See id. The police officers seized the container from the defendant and arrested him. See id. Analysis of the substance in the container by a Philadelphia police laboratory confirmed that this substance was indeed crack cocaine. See id.
The total amount of crack cocaine seized from the defendant was 230 grams, 128 grams from the first arrest and 102 grams from the second arrest. See Colloquy at 13. At the change of plea hearing, the government stated that it was prepared to present the testimony of an expert, Officer Jim Corbin, who would testify that, based on the amount of crack cocaine seized and its street value, it was his opinion that the defendant intended to distribute the cocaine. See id. at 13-14.
C. Entry of Guilty Plea
A federal grand jury indicted the defendant on all three counts on March 25, 1998. See supra n. 4 (listing three counts of indictment). On June 1, 1998, the defendant was arraigned and he entered a plea of not guilty to all three counts. Counsel was appointed for the defendant. On July 21, 1998, the defendant's counsel filed a motion for severance and separate trials on Count One and Count Two of the indictment. Three days later, his counsel also filed a motion to suppress all physical evidence seized in the case. The government filed a response to both motions on August 25, 1998.
On September 23, 1998, the government filed a Change of Plea Memorandum, which outlined the terms of the plea agreement that had been reached between the defendant and the government. See Govt.'s Change of Plea Memo. Pursuant to this agreement, the defendant agreed to cooperate with law enforcement by providing information to the government. In exchange, the government agreed that if, in its sole discretion, it determined that the defendant had fulfilled his obligation of cooperation, at the time of sentencing it would: (1) make known to the court the nature and extent of defendant's cooperation; and (2) move to allow the court to depart from the mandatory sentencing guidelines pursuant to section 5k1.1 of the Sentencing Guidelines. See id. at 2.
On October 1, 1998, the defendant appeared before the Honorable Joseph L. McGlynn and changed his plea from not guilty to guilty on Counts One and Two of the indictment and agreed not to contest the forfeiture, under Count Three of the indictment, of certain property that was seized at the time of his arrests. Govt.'s Change of Plea Memo. at 1-2. At the change of plea hearing, Judge McGlynn conducted a full guilty plea colloquy pursuant to the requirements of Federal Rule of Criminal Procedure 11. In the course of that colloquy, Judge McGlynn asked the defendant questions to confirm that he was competent to plead guilty and that his plea was voluntary, knowing, and intelligent. Judge McGlynn ensured that the defendant understood the elements of the offenses to which he was pleading guilty, the mandatory minimum and maximum penalties for these offenses, the effects of supervised release and of the sentencing guidelines. See Colloquy at 5-6. Judge McGlynn also informed the defendant of his right not to plead guilty and to go to trial, to decline to testify at trial, and to be represented by counsel at trial and on appeal. See id. at 6-8. At this hearing, the judge also explicitly explained to the defendant that by pleading guilty to the charges, he was giving up the right to have the court decide his motion to sever and his motion to suppress. See id. at 7.
The judge explained that the defendant was giving up his right to challenge any defects surrounding his arrest, by stating:
Q. Also you're giving up your right to challenge any defects there may be in the proceedings up to this point. I note that the record showed you had filed some pretrial motions, including a suppression of the evidence —
Mr. Ortiz: And I filed a severance motion.
The Court: And by pleading guilty, you're giving up your right to challenge those defects that may be in the proceedings. That includes the manner in which the evidence was gathered, any proceedings before the United States magistrate or the United States grand jury; do you understand that?
A. Yes, sir.
Colloquy at 7.
Following this colloquy, the defendant entered, and the court accepted, his plea of guilty to all three charges of the indictment. See id. at 14-15. Pursuant to the written plea agreement, in the months that followed, the defendant cooperated with the government in an attempt to render assistance to law enforcement. Nonetheless, on January 20, 1999, the government reported to the court that "the government is unable to move the Court to depart from the Sentencing Guidelines or any statutory mandatory minimum term of imprisonment because the government has determined that, despite his cooperation, defendant has been unable to render substantial assistance to law enforcement."See Govt.'s Sentencing Memo. at 3.
The court had scheduled the defendant's sentencing for January 21, 1999. On that same day, however, the defendant filed a pro se motion to withdraw his plea of guilty. The court then appointed new counsel for the defendant, who filed an amended motion to withdraw the guilty plea on May 6, 1999. The court now considers the defendant's motion together with the government's response.
On April 2, 1999, by order of the court, Luis Ortiz, Esquire, was granted approval to withdraw as counsel for the defendant and Michael Holston, Esquire, was appointed as counsel for the defendant. Despite the fact that the defendant had counsel at the time, he filed the motion to withdraw his guilty plea pro se.
II. LEGAL STANDARD
A guilty plea is a "`grave and solemn act' which is `accepted only with care and discernment.'" Government of Virgin Islands v. Berry, 631 F.2d 214, 221 (3d Cir. 1980) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). It is not "a mere gesture, a temporary and meaningless formality reversible at the defendant's whim." United States v. Barker, 514 F.2d 208, 221 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013 (1975). There is no absolute or automatic right to withdraw a guilty plea, and the decision whether to allow a defendant to do so is within the sound discretion of the trial court. See id.;United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985);Berry, 631 F.2d at 219-20. The defendant, Morris, bears the burden of showing why the "privilege" of withdrawing his guilty plea should be granted by the court. See Berry, 631 F.2d at 220.
Federal Rule of Criminal Procedure 32(e), which governs the withdrawal of guilty pleas, provides:
If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255. Fed.R.Crim.P. 32(e).
The Federal Rules of Criminal Procedure draw a distinction between the withdrawal of a plea of guilty before sentence is imposed and withdrawal of a plea of guilty after sentence is imposed. See Fed.R.Crim.P. 32(e) (applying "fair and just" standard to withdrawal of guilty pleas before sentencing and stating that if the motion to withdraw is made "[a]t any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255"). As our Court of Appeals has noted, "[a]lthough the burden which a defendant must meet to show there are grounds for withdrawal of a guilty plea before sentence is imposed is not as heavy as it would be in a post-sentence motion, nonetheless it is defendant's burden to establish that there are in fact grounds for withdrawal." See Berry, 631 F.2d at 220.
Federal Rule of Criminal Procedure 32(e), which governs the withdrawal of a guilty plea, was located at subdivision (d) of Rule 32 until the rule was amended in 1994. Other than the renumbering, however, the provision remains the same as before the amendment, with the exception of some minor stylistic changes. See Fed.R.Crim.P. 32 advisory committee's notes.
The Federal Rules of Criminal Procedure draw a distinction between the withdrawal of a plea of guilty before sentence is imposed and withdrawal of a plea of guilty after sentence is imposed. See Fed.R.Crim.P. 32(e) (applying "fair and just" standard to withdrawal of guilty pleas before sentencing and stating that if the motion to withdraw is made "[a]t any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255"). As our Court of Appeals has noted, "[a]lthough the burden which a defendant must meet to show there are grounds for withdrawal of a guilty plea before sentence is imposed is not as heavy as it would be in a post-sentence motion, nonetheless it is defendant's burden to establish that there are in fact grounds for withdrawal." See Berry, 631 F.2d at 220.
Federal Rule of Criminal Procedure 32(e), which governs the withdrawal of a guilty plea, was located at subdivision (d) of Rule 32 until the rule was amended in 1994. Other than the renumbering, however, the provision remains the same as before the amendment, with the exception of some minor stylistic changes. See Fed.R.Crim.P. 32 advisory committee's notes.
The fundamental inquiry, therefore, is whether the defendant has demonstrated a "fair and just" reason to permit the withdrawal of his guilty plea. See United States v. Artabane, 868 F. Supp. 76, 78 (M.D. Pa. 1994). The Third Circuit has stated that it looks primarily to three factors in evaluating whether to permit a defendant to withdraw a guilty plea:
(1) whether the defendant asserts his innocence; (2) whether the government would be prejudiced by his withdrawal; and (3) the strength of the defendant's reason to withdraw the plea.
United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989);Trott, 779 F.2d at 915 (citing Berry, 631 F.2d at 219)).
The government concedes that it would not "suffer cognizable prejudice if the defendant's guilty pleas were withdrawn." Govt.'s Resp. Am. Mot. at 2 n. 1. The government bears the burden of showing that it would suffer prejudice, however, only if the defendant first succeeds in demonstrating a fair and just reason for withdrawing his plea. See United States v. Brown, No. 95-618, 1997 WL 22394, at *2 (E.D. Pa. Jan. 17, 1997). The Third Circuit "has made clear that `the government is not required to show prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of the plea.'" Id. (quoting United States v. Martinez, 785 F.2d 111, 116 (3d Cir. 1986)). Thus, it is not necessary for the court to find that the government would suffer prejudice because, as explained within, the court finds that the defendant has failed to meet his burden of showing a "fair and just" reason to withdraw his plea.
The government concedes that it would not "suffer cognizable prejudice if the defendant's guilty pleas were withdrawn." Govt.'s Resp. Am. Mot. at 2 n. 1. The government bears the burden of showing that it would suffer prejudice, however, only if the defendant first succeeds in demonstrating a fair and just reason for withdrawing his plea. See United States v. Brown, No. 95-618, 1997 WL 22394, at *2 (E.D. Pa. Jan. 17, 1997). The Third Circuit "has made clear that `the government is not required to show prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of the plea.'" Id. (quoting United States v. Martinez, 785 F.2d 111, 116 (3d Cir. 1986)). Thus, it is not necessary for the court to find that the government would suffer prejudice because, as explained within, the court finds that the defendant has failed to meet his burden of showing a "fair and just" reason to withdraw his plea.
In addition, the court may also consider the amount of time that has passed between the entry of the guilty plea and the motion to withdraw the plea. See Barker, 514 F.2d at 222 (explaining that the "standard for judging the movant's reasons for delay remains low where the motion comes only a day or so after the plea was entered. . . . A swift change of heart is itself strong indication that the plea was entered in haste and confusion"); Artabane, 868 F. Supp. at 78 ("The amount of time which has passed between the plea and the motion must also be taken into account."). Morris waited three months after entering his guilty plea to file a motion to withdraw his plea, and he did so immediately after learning for the first time that the government would not be filing a motion that would permit the court to depart downward under the sentencing guidelines because of the defendant's substantial assistance in the investigation or prosecution of others.
III. DISCUSSION
The defendant argues that this court should permit him to withdraw his guilty plea to both counts because he has demonstrated a "fair and just" reason for permitting such a withdrawal.
A. Count Two
As to Count Two, the defendant contends that he is legally innocent because the only evidence against him was the result of an illegal search. The essence of his argument is that Knowles v. Iowa, 119 S.Ct. 484 (1998), a decision handed down by the Supreme Court subsequent to the entry of his guilty plea, creates a viable suppression defense that would exclude the only evidence forming the basis of Count Two. See Def.'s Am. Mot. at 10.
1. The Defendant's Assertion of Innocence
In determining whether to permit a defendant to withdraw a guilty plea, courts in this circuit first examine whether the defendant has asserted his or her innocence. See Huff, 873 F.2d at 712. Bald assertions of innocence, however, are insufficient to permit a defendant to withdraw his guilty plea.See United States v. Salgado-Ocampo, 159 F.3d 322, 326 (7th Cir. 1998). "Assertions of innocence must be buttressed by facts in the record which support a claimed defense." Id. (citingUnited States v. Groll, 992 F.2d 755, 758 (7th Cir. 1993);United States v. Caban, 962 F.2d 646, 649 (7th Cir. 1992)).
The defendant claims that he is "legally innocent" of the charges contained in Count Two of the indictment because he has a valid defense that rebuts the charges against him. See Def.'s Am. Mot. at 4. Specifically, he cites Knowles v. Iowa, 119 S. Ct. 484 (1998), for the proposition that the sole evidence against him with regard to Count Two is the product of an illegal search and thus, must be excluded. See Def.'s Am. Mot. at 5-6.
The court need not determine, however, whether the defendant has now sufficiently asserted his claim of legal innocence because the defendant waived any claim of innocence based on the suppression of evidence at his change of plea hearing. The decision by the Third Circuit in United States v. Huff, 873 F.2d 709 (3d Cir. 1989), is particularly instructive here. See id. at 712; see also United States v. Napier, No. 97-214, 1998 WL 770627, at *3 n. 4 (E.D. Pa. Nov. 4, 1998) (holding that defendant waived defenses when he entered his guilty plea because the court had conducted an extensive colloquy explaining the consequences of pleading guilty and the defendant had stated that he understood those consequences). The defendant in Huff entered a plea of guilty following a colloquy in which the judge explained that:
by entering a plea of guilty [the defendant] would be giving up "`important and significant constitutional and other legal rights" including, among others, the right "to challenge prior to trial any evidence that the government might have obtained during the course of an arrest" and "that would include any statements that you may have given to the authorities."Huff, 873 F.2d at 710-11. The defendant then moved to withdraw his guilty plea and requested a "full litigation" of the issue of the voluntariness of statements he had given to law enforcement.Id. at 711. The trial court denied the motion and the defendant appealed. See id. The Third Circuit affirmed the trial court's decision. See id. at 714.
In Huff, the Third Circuit declined to reach the issue of whether the district court erred in denying the defendant's motions to suppress the defendant's statements because the court found that the defendant had waived his right to challenge the voluntariness of his statements when he pleaded guilty. See id. at 711. The court explained that if the defendant "wanted to preserve his rights to challenge the validity of his statements on appeal, he should have refused to have pleaded guilty unless his plea was conditional. . . ." Id. at 712. For the same reasons, the Third Circuit found that the trial court had properly denied the defendant's motion to withdraw his guilty plea. See id. (noting that the defendant "was well aware that he waived his right to make [a challenge to the voluntariness of the statements] when he entered his plea").
The defendant here has similarly waived his right to raise a suppression defense by failing to preserve such a right during his change of plea hearing. In the change of plea colloquy, Judge McGlynn explained to the defendant that by choosing to plead guilty, he was giving up the right to challenge the legality of any evidence seized. See Colloquy at 7. Judge McGlynn reminded the defendant that he had a motion to suppress evidence still pending before the court and explained that if he pleaded guilty he was forfeiting the right to have the court decide that motion.See id. Judge McGlynn then stated: "And by pleading guilty, you're giving up your right to challenge those defects that may be in the proceedings. That includes the manner in which the evidence was gathered, any proceedings before the United States magistrate or the United States grand jury; do you understand that?" Id. The defendant responded in the affirmative. See id. Thus, the defendant is precluded from now raising the suppression of evidence issue as a defense to the charges against him.
2. Strength of Defendant's Reasons for Moving to Withdraw
The defendant asserts that he has an "unquestionably strong" reason to withdraw his guilty plea because "the state of the law regarding traffic stop searches under the Fourth Amendment has changed since the Defendant's guilty plea and would dramatically alter the outcome in this case. . . ." Def.'s Am. Mot. at 11-12. He claims that "subsequent to his guilty plea, the Supreme Court . . . held that the Fourth Amendment prohibits a search of an automobile which was merely incident to the issuance of a traffic citation." Id. at 11 (citing Knowles v. Iowa, 119 S. Ct. 484 (1998)). The defendant therefore argues that the search of his automobile, which may have been legal at the time pursuant to the "search incident to citation" exception to the warrant requirement of the Fourth Amendment, was rendered unconstitutional by the Supreme Court's decision in Knowles. In response, the government argues that the defendant failed to demonstrate that there has been any cognizable change in Fourth Amendment exclusionary law. See Govt.'s Resp. Am. Mot. at 7-8. The court agrees with the government that the decision in Knowles was not a change in Fourth Amendment exclusionary law, but rather, was consistent with prior Supreme Court Fourth Amendment precedent. Thus, the court finds that this is not a valid reason for the defendant now to seek to withdraw his guilty plea as to Count Two.
In addition, existing case law in the Third Circuit sheds considerable doubt on whether the defendant could withdraw his guilty plea based on an intervening change in suppression law, even if the defendant could prove the existence of such a change in the law. See United States v. Vallego, 476 F.2d 667, 670 (3d Cir. 1973) (holding that defendant who wished to withdraw guilty plea because of change in sentencing law subsequent to the entry of his guilty plea was not entitled to do so, and stating that "[a] change in the law subsequent to the entry of a guilty plea is not, in and of itself, a ground for its withdrawal, where the plea is knowingly entered on the advice of counsel").
In Knowles, the petitioner was stopped by an Iowa police officer who issued him a citation for speeding. See Knowles, 119 S. Ct. at 486. The officer conducted a full search of the car and found drugs under the driver's seat. See id. Knowles was then arrested for violation of state laws dealing with controlled substances. See id.
Before trial, Knowles moved to suppress the evidence of the drugs found in the car. See id. Knowles argued that the full search of the vehicle could not be sustained under the "search incident to arrest" exception recognized in United States v. Robinson, 414 U.S. 218 (1973), because he had never been arrested. See Knowles, 119 S. Ct. at 486. At the suppression hearing, the police officer asserted that he had relied on Iowa law in conducting the search of Knowles's automobile because Iowa Code Ann. § 321.485(1)(a) (West 1997), permitted police officers "to conduct a full-blown search of an automobile and driver in those cases where police elect not to make a custodial arrest and instead issue a citation — that is, a search incident to citation." Knowles, 119 S. Ct. at 487.
The Iowa trial court denied the motion to suppress and Knowles was found guilty. See id. On appeal, the Iowa Supreme Court upheld the constitutionality of the search under the "search incident to citation" exception to the warrant requirement of the Fourth Amendment and the United States Supreme Court granted certiorari to determine whether the "search incident to citation" exception violated the Fourth Amendment. See id.
In its decision, the Court examined the "two historical rationales for the `search incident to arrest' exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial," which justify a full search of a vehicle after an arrest. Id. at 487. The Court concluded that neither rationale was applicable to the "search incident to citation" exception. See id. Thus, the Court found that it could not extend the "bright-line rule" of the search incident to arrest exception to a situation involving a search incident to a citation. Id. at 488. Consequently, the Court held that the Iowa statute, as interpreted by the Iowa Supreme Court to create a "search incident to citation" exception to the warrant requirement under the Fourth Amendment, was unconstitutional. See id.
The defendant argues that this decision "dramatically altered the legal landscape," Def.'s Am. Mot. at 1, by "limit[ing] the scope of constitutionally-permissible searches in the context of the issuance of a citation." Id. at 7. Contrary to the defendant's contention, the decision in Knowles did not change the "legal landscape" of Fourth Amendment law; it merely refused to create another exception to the warrant requirement of the Fourth Amendment.
The Fourth Amendment protects against unreasonable searches and seizures. See U.S. Const. amend. IV. In general, a search is considered unreasonable if it is not based on probable cause and not authorized by a warrant. See O'Connor v. Ortega, 480 U.S. 709, 722 (1987); Carroll v. United States, 267 U.S. 132, 149 (1925). To meet the needs of law enforcement, however, the Supreme Court has carved out certain exceptions to the warrant requirement, and has permitted some searches and seizures on grounds less than probable cause. See O'Connor, 480 U.S. at 722.
There are three levels of constitutionally-permitted police intrusion on the lives of citizens: (1) a traffic stop; (2) a "Terry" stop; and (3) a custodial arrest.
In the case of a routine traffic stop, if a police officer observes the driver of an automobile commit a traffic violation, the officer may stop the automobile, and may require the driver and any passengers to exit the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 519 U.S. 408, 412 (1997). The police officer may briefly detain the occupants of the vehicle while the officer issues the traffic citation. See Mimms, 434 U.S. at 111. In the case of a routine traffic stop, there has never been any authority for a police officer to conduct a full search of the automobile and such a search would clearly be inconsistent with the other limitations placed on traffic stops.
An officer may also stop and detain a driver if the officer has an articulable and reasonable suspicion that criminal activity may be afoot. See Delaware v. Prouse, 440 U.S. 648, 663 (1979). During such a stop, known as a "Terry stop," the officer may detain the person for limited and relevant questioning, as long as the detention is "no longer than is necessary to effectuate the purpose of the stop." See Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion). In a Terry stop, the officer may also "frisk" the person whom he has stopped to search for weapons, if the officer has a reasonable belief that the person might be armed and presents a danger to the officer.See Terry v. Ohio, 392 U.S. 1, 25-26 (1968) (explaining that the "frisk" is necessary to protect the officer from assault with a concealed weapon); see also Mimms, 434 U.S. at 111-12 (holding that a protective search of a driver after a traffic stop is reasonable). Additionally, the officer may conduct a limited protective search of the interior of the stopped automobile. Michigan v. Long, 463 U.S. 1032, 1051 (1983) (holding that a police officer may conduct a search of the passenger compartment of an automobile as long as the officer has an "articulable and objectively reasonable belief that the suspect is potentially dangerous"). The search, however, must be restricted to a part of the vehicle where a weapon may be within reach of the suspect. See id. at 1049. It has long been clear, therefore, that the police may not conduct a full search of a stopped vehicle pursuant to a Terry stop. See Royer, 460 U.S. at 499 (finding that during an investigative Terry stop "the police may not carry out a full search of the person or of his automobile or other effects").
Only in the event of a custodial arrest may the police conduct a full search of a suspect's person. See United States v. Robinson, 414 U.S. 218, 224 (1973). Moreover, a police officer who has made a lawful custodial arrest of the occupant of an automobile may also search the entire passenger compartment of the automobile, including any containers found therein. See New York v. Belton, 453 U.S. 454, 460 (1981).
Thus, according to Supreme Court precedent in place at the time of the Knowles decision, a police officer could only conduct a full search of an automobile pursuant to a custodial arrest, not during a routine traffic stop, or even during a Terry stop. Because long standing precedent has not allowed a full vehicle search after a Terry stop, and a Terry stop is more intrusive than a traffic stop, it was certainly clear before Knowles that a full vehicle search would not be permitted after the less intrusive traffic stop. The decision in Knowles did nothing to alter this conclusion, and therefore, was not a change in the law.
Because the court finds that there was no change in Fourth Amendment law applicable to the defendant's case and because the defendant entered a plea of guilty after being advised in the colloquy that he was withdrawing his suppression issue so that the suppression issue has been waived, the court holds that the defendant has asserted no fair and just reason to withdraw his guilty plea on Count Two.
B. Count One
With respect to Count One, the defendant argues that he is factually innocent of the charges brought against him. See Def.'s Am. Mot. at 12. The defendant further asserts that he has a "strong and just reason" for the withdrawal of his guilty plea because the "sole reason that the Defendant agreed to plead guilty to Count One was based on the fact that he was also facing charges with respect to Count Two," and his sentence would be no different on one count than on both under the Sentencing Guidelines. Id. at 14-15. Therefore, the defendant argues that he should be permitted to withdraw his guilty plea on Count One because "recent Supreme Court precedence [i.e., the Supreme Court decision in Knowles] permits the Defendant to assert his legal innocence with regard to the second count" and "[i]f the government had not been able to rely on the illegal search to charge the Defendant with [the second count], the Defendant would not have entered into the joint plea agreement with the government with respect to both counts." Id.
As explained above, the court concludes that the defendant has not asserted any "fair and just" reason to permit the withdraw of his guilty plea on Count Two. Because the defendant is not being allowed to withdraw his plea on Count Two, the reason he asserts for permitting him to withdraw his plea on Count One also fails. The court holds, therefore, that the defendant will not be allowed to withdraw his guilty plea as to either count.
IV. CONCLUSION
The court finds that the defendant has not demonstrated any fair and just reason for the withdrawal of his guilty plea. Accordingly, the court will deny Defendant's Amended Motion to Withdraw Pleas of Guilty (Document No. 41). An appropriate order follows.
ORDER
AND NOW, this ____ day of August, 1999, upon consideration of defendant's amended motion to withdraw guilty pleas and the memoranda in support and in opposition thereto, and letter briefs submitted by the defendant and the government, and after an evidentiary hearing before the undersigned, IT IS HEREBY ORDERED that Defendant's Amended Motion to Withdraw Pleas of Guilty (Document No. 41) is DENIED.It is FURTHER ORDERED that sentencing is scheduled for 4:00 p.m. on October 7, 1999, in Courtroom 14B, United States District Court, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.