HOLLIDAYSBURG - Blair County Judge Timothy M. Sullivan said that statements made by a suspect in a drug case cannot be used against him when he goes to trial because he was not advised of his right to remain silent and to have an attorney present while in police custody.
The suspect, Jerome Green, 46, was not the person police were looking for during the early morning of Nov. 4, 2011. They went to Green's address, 2500 Washington Ave., to find Ray N. "Freddy" Stiver Jr.
After knocking, police were allegedly admitted by a resident of the home and conducted a "protective sweep" to determine who was present.
Police allegedly found seven people, including Green, who helps his mother operate collection and recycling businesses.
Stiver also was found and arrested. During the initial sweep, officers allegedly found marijuana in an office area of the home.
At that point, Altoona police drug investigator Christopher Moser prepared a search warrant application that was approved at 3:15 a.m. by Magisterial District Judge Paula Aigner.
Officers, assisted by a drug dog, then searched the residence and took possession of 96 grams of marijuana and a small digital scale.
State Police Trooper Charles Chaney was among those in the home that night, and, according to the opinion issued Tuesday by Sullivan, Green allegedly took him upstairs in the residence to show him more marijuana and a grinder used to prepare the marijuana for smoking.
Chaney asked Green who the marijuana belonged to. Green allegedly said it was for his personal use.
In a recent hearing, it came out that Green had not been advised of his rights and was not asked to sign a rights waiver.
Green was not arrested until July following an investigation by a statewide grand jury.
He faces charges of possession with intent to deliver marijuana, 96 grams, and possession of a controlled substance.
His attorney, Phillip O. Robertson, asked that the evidence against him be barred from trial because the marijuana was found during a protective sweep and his statements were made without prior notification of his rights.
Sullivan, in a 10-page opinion, stated that a protective sweep is permitted under Pennsylvania law, but it is to be a quick look through the home to discover who is present.
"The kind of sweep envisioned here is for persons. It cannot be used as a pretext for an evidentiary search," the judge stated, citing a 1999 Pennsylvania Superior Court ruling.
The judge ruled the police entry into the home in search of Stiver was lawful. He concluded the protective sweep was lawful and that the discovery of the marijuana, in plain view, did not violate the constitutional purpose of the protective sweep.
But, he ruled, Green that night was in police custody and not free to leave the home.
"Therefore, we find that under such circumstances, the defendant should have been read his Miranda rights. ... Therefore we will suppress his alleged admission that the marijuana belonged to him," Sullivan stated.
Green's next court appearance will be March 3 for a trial list review.
State court records show that Stiver is still waiting for his trial with the case having been continued in November.
Mirror Staff Writer Phil Ray is at 946-7468.