Although an extensive debate between Penn State Judicial Affairs and Olivia Guevara ended last week, the motives behind her prosecution are still being questioned.

Over the past five months, Guevara, a graduate student in the department of labor, has repeatedly challenged Penn State’s decision to prosecute her for vandalism and accused the university of singling her out to squelch her anti-sweatshop activism.

The battle has grown to involve 48 professors, labor departments from other universities, labor unions, concerned students from across the country and a local attorney who said Guevara’s First Amendment rights were at risk.

The charges stem from an incident on Sept. 27, when Guevara and several other activists chalked anti-sweatshop messages on several university buildings, including Old Main. Criminal charges against Guevara were dismissed because of a lack of evidence. However, Judicial Affairs asked for damage fees and issued a seven-year citation on her academic record.

Penn State officials have maintained that Guevara’s Judicial Affairs hearing was fair and that her prosecution was solely a matter of vandalism.

The university was also steadfast in its determination of Guevara’s damage fees to repair a door of Old Main until last week when it reduced them from $408.96 to $136.32, citing an incorrect initial estimation of the damages.

Contrary to past statements by administrators, Guevara has maintained that she never admitted to specifically scratching the doors of Old Main, which is what she must pay the damage fee for. She also said that scratches were never discussed at her hearing.

Penn State has said it had “more than adequate evidence” to prosecute Guevara.

However, neither the police report nor the criminal citation on the incident indicates any scratches on the Old Main doors.

OPP employees have refused to comment on the cleanup or the damages to the door, directing all inquiries to Penn State spokesman Bill Mahon.

Mahon refused to comment on the work order, saying that the university had nothing more to say about “this minor case of vandalism.”

Guevara said this is an example of the university’s ambiguous treatment of the case.

“I’m glad someone finally did their job and made the correction,” Guevara said. “But given the evidence and how things turned out I still question why the university acted the way they did. They haven’t been clear on many things since the very beginning.”

Guevara also said she still thinks she was unfairly prosecuted by the university because her views were hostile to Penn State.

“I can say this confidently because to my knowledge no other student organization has ever been tried for chalking,” Guevara said.

While chalking is a violation of the student code of conduct, administrators have said in the past that chalking isn’t the problem, but the scratches and damages the Old Main door is.

Although Guevara said she is still frustrated with the result, she is also relieved that the Judicial Affairs case is over.

“It’s been a rollercoaster,” she said.

The Chalking Incident and Subsequent Trials

Guevara’s rollercoaster ride began on the night of Sept. 27 when “Adopt the DSP” and “Make Penn State Sweatshop Free” were written in chalk on several university buildings. A surveillance video from Old Main that night shows six or seven activists writing on the buildings.

United Students Against Sweatshops (USAS) and The Student Labor Action Project (SLAP) have been asking Penn State to sign the Designated Suppliers Program (DSP), a plan that ensures licensed apparel for universities is not made in sweatshops. While Guevara is a member of both groups, neither group was identified by Judicial Affairs as the organizer behind the chalking incident.

Penn State University police used The Daily Collegian archives and Facebook to identify Guevara as one of the people in the surveillance video.

Guevara received notice to appear before Centre County District Judge Jonathan Grine to be charged with criminal mischief involving tampering with private property. She was also summoned by Judicial Affairs for a disciplinary hearing.

Judicial Affairs only prosecutes students for violating the student code of conduct, while the court can try students for criminal activity.

During her first meeting with Judicial Affairs, Guevara was given the option to name the other students of the group who were shown in the videotape to lessen her sanctions, but she refused. She also refused to identify the student groups involved in the chalking.

Guevara appealed the ruling but her sanctions were upheld.

After being informed of Guevara’s case by members of USAS, concerned individuals from labor unions and university labor departments wrote letters to Penn State President Graham Spanier asking him to lessen or drop Guevara’s charges and encouraging compliance with the DSP.

Guevara said multiple letters were sent to Spanier from organizations such as the Cornell Organization for Labor Action and USAS International.

She also said that students at other universities, such as Cornell and Georgetown, wrote to Spanier on her behalf.

Two weeks ago, 48 Penn State professors got involved in the battle when they delivered a letter to Spanier asking him to drop the sanctions against Guevara and to adopt the DSP.

In a response letter, Spanier said the charges would remain.

Before appearing in criminal court, Guevara contacted attorney Andrew Shubin to discuss her charges. Shubin told Guevara he was concerned that her first amendment rights were being violated and that he would handle her case for free.

In trial, Shubin argued that the court was selectively prosecuting Guevara because of the content of her messages. He said other groups that had advertised by chalking university property had never been charged. He showed pictures of chalked messages on campus from mtvU and Lionmenus.com.

Shubin also argued that although the surveillance video shows Guevara chalking a column of Old Main, she could not be clearly identified chalking other parts of the building.

After viewing the videotapes Grine dropped Guevara’s charges because of a lack of evidence.

Despite the dismissal of her criminal charges and the requests of concerned professors, university administrators repeatedly said all of Guevara’s sanctions would remain.

Last week, almost three months after first charging Guevara for damages, the university adjusted the fee.

The Damage Controversy

On Friday, the university admitted that its calculation of damages was wrong.

At the beginning of the criminal hearing on Feb. 5, Penn State police officer Roxanne Snider informed the judge that she was reducing the restitution costs from $408.96 to $381.92 because she did not have sufficient evidence to identify Guevara chalking the doors.

Despite Snider’s reduction of the fees in criminal court, Judicial Affairs kept Guevara’s fee the same.

When Guevara asked Director of Judicial Affairs Joe Puzycki to adjust the fees to $381.82 on Feb. 23, she was told that OPP confirmed the original repair costs.

According to the police report received by Judicial Affairs on Nov. 28, Office of the Physical Plant Supervisor Connie Brumgard determined that there was a $408.96 “cleanup cost” for the chalked messages.

Guevara’s citation for criminal mischief also mentions the $408.96 restitution fee. However, the criminal citation reads “12 hours labor for cleanup” under the restitution fee. Neither report cites damage to the doors or asks for a restoration cost for the scratches.

Brumgard would not comment on the damage and directed all inquiries to other OPP supervisors who said they did not know the details of the chalking incident.

Guevara said she asked both OPP and Puzycki for a copy of the work order, which included the fee to clean the doors, but never received it. When asked for a copy of the OPP fee confirmation letter by the Collegian on Feb. 28, Puzycki did not include it in his e-mail response.

Guevara received e-mail notification from Puzycki the next day saying that her restitution fees had been reduced to $108.32 for labor and $28.00 for equipment.

Judicial Affairs ignored another request by The Collegian for a copy of the newly reviewed work order.

An Admission of Guilt

Guevara’s request for a reconsideration of the damage fee has also raised questions about her alleged admission of damaging the door and the validity of the Judicial Affairs accusations.

Judicial Affairs says that Guevara admitted to damaging the doors in her disciplinary hearing on Dec. 14.

Guevara said that although she admitted to chalking in general, a specific door was never discussed and that the first time she heard of scratches was when a reporter inquired about them in mid-January.

In an e-mail message sent to Puzycki on Feb. 23, Guevara wrote “The description of the charges and our discussion of the sanctions indicated that the monetary restitution associated with the charges was only related to the cleanup of the chalk from the general surfaces mentioned in the police report.”

In Puzycki’s response sent on the same day, he said his “recollection is very clear” that Guevara accepted responsibility.

“The charge that you accepted responsibility for was the University Code 14.08: Damage/Cleanup. These charges were derived from the police report and from the original discussion we had in your Discipline Conference where you admitted to me that you were involved in defacing and responsible for damage to the Old Main doors (along with others that you would not name),” Puzycki wrote.

The e-mail message also explained that Judicial Affairs narrowed the charge to door damage because of video footage that placed Guevara at the Old Main location the night in question, in addition to her disciplinary conference testimony.

“I stand by my word that the Judicial Affairs officer is lying because I never admitted to damaging any door,” Guevara said in a subsequent phone interview with The Collegian.

The Sweatshop Battle Continues

Although Guevara still disagrees with the rulings, she said she paid the fees to avoid disrupting her academic endeavors. The money she is using to pay for the fees is a collection of donations from 48 professors and other student and community leaders.

Guevara said she thinks the case made USAS, SLAP and the anti-sweatshop movement even stronger.

The groups are continuing to put pressure on Penn State to adopt the DSP.

On Friday banners saying “Adopt the DSP” were hanging from Willard and Sackett Buildings, while members of USAS handed out fliers in front of the building.

USAS member Doug Baldwin said an anonymous student sent him an e-mail message informing him that there would be an anti-sweatshop demonstration in front of the buildings around noon and asked the group to hand out fliers.

Penn State has refused to sign the DSP, saying that it raises anti-trust issues and has structural problems. University officials have also said that although it will not adopt the plan, it is committed to combating sweatshop labor.

MEMORANDUM AND ORDER. December 22, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court are various suppression motions filed by the above-named Defendants in this action. The pending motions are as follows: Defendant Leon Glaspie’s Motion to Suppress (doc. 49) filed on December 1, 2005; Defendant Jerome George’s Motion to Suppress (doc. 66) filed on February 23, 2006; Defendant Leon Glaspie’s Supplemental Suppression Motion (doc. 87) filed on March 17, 2006; Defendant Jerome George’s Supplemental Suppression Motion (doc. 102) filed on April 4, 2006 and; Defendant Leon Glaspie’s Second Supplemental Motion to Suppress (doc. 109) filed on April 17, 2006.
By previous Order of Court dated October 10, 2006 we granted Defendant Markeif Fields’ and Jerome Georges’ individual Motions to join in their co-Defendant Leon Glaspie’s suppression motions. (Rec. Doc. 242).

PROCEDURAL HISTORY:
A hearing was held on the pending motions on five separate days; May 22, 2006; May 31, 2006; June 12, 2006; July 18, 2006 and; August 9, 2006. Testimony was presented by the Government and the Defendants during the hearing. Following the conclusion of the final hearing day, August 9, 2006, we entered an Order setting forth a post-hearing briefing schedule. To date, the parties have complied with the briefing schedule. Accordingly, the motions are fully briefed and therefore ripe for our review.

Since the conclusion of the suppression hearing, Defendants Glaspie and George have pled guilty, pursuant to negotiated plea agreements, to one count informations charging each with a violation of 18 U.S.C. § 371, conspiracy to commit an offense against the United States.

See United States v. Glaspie, 4:06-cr343; United States v. George, 4:06-cr-344. Within the plea agreements, the United States agrees to move for dismissal of the First Superseding Indictment in the above-captioned case as it pertains to Glaspie and George, in exchange for their respective pleas of guilty to violations of 18 U.S.C. § 371. As a result, the only remaining defendant in this action who has not pled guilty and has standing to proceed on the suppression motions is Markeif Fields (“Fields”).

1 As Fields notes in his post-hearing submission, the legal principles underpinning his suppression motion are narrower than Glaspie and George’s. Therefore the only issues that remain before the Court that were not mooted by Glaspie and George’s guilty pleas are the legality of the warrantless entry into Apartment 1, 1920 Riverside Drive, South Williamsport, Pennsylvania on March 11, 2005 and whether probable cause supported the issuance of the search warrant for the same residence on that same date.
2 FINDINGS OF FACT:
On March 10, 2005, Lieutenant Thomas Ungard (“Lt. Ungard”) of the Williamsport Police Department, and a member of the Lycoming County Drug Task Force, had a telephone conversation with a female Confidential Informant (“CI”), during which the CI advised Lt. Ungard of alleged drug dealing activities of two African-American males occurring in the vicinity of 1920 Riverside Drive, South Williamsport, Pennsylvania. (Hearing Transcript Volume I, p. 94-95; Vol. II, p. 42). The CI also advised Lt. Ungard that the names of the two males were
1 Co-defendant Andre Spinks has previously agreed that he does not have standing to contest the search of Apartment 1, 1920 Riverside Drive, South Williamsport, Pennsylvania.
2 Defendant George’s Motion to Suppress (doc. 66), Defendant George’s Supplemental Suppression Motion (doc. 102), and Defendant Glaspie’s Supplemental Suppression Motion (doc. 87) and Second Supplemental Motion to Suppress (doc. 109) shall be dismissed as moot, due to their respective guilty pleas. Defendant Glaspie’s Motion to Suppress (doc. 49) is the only motion to survive because Fields was granted leave to join in that Motion.
Jerome and Leon Robinson, however, the CI informed Lt. Ungard that she believed these names were “bullshit.” (Vol. I, p. 94; Vol. II pp. 42, 56). Lt. Ungard traveled to the area identified by the CI and also contacted Sergeant O’Connell of the South Williamsport Police Department to advise him of the information he received from the CI. (Vol. II, p. 26; Vol. V, p. 16).
On the following day, while on duty in the vicinity of the Third and Campbell Streets in Williamsport, Lt. Ungard and Officer Jeremy Brown
3 (“Officer Brown”) observed an illegal drug transaction between Sharon Jencks, a crack-cocaine user known to the officers, and an unidentified African-American male. (Vol. I, pp. 6, 61, 96). The officers confronted Jencks, who admitted that she had just purchased crack-cocaine from Greg Cummings (“Cummings”). The officers thereafter located and arrested Cummings in the vicinity of 770 West Fourth Street, Williamsport, which was known to the officers as a drug activity area. (Vol. I, p. 62-63).
Immediately upon his arrest, Cummings displayed a willingness to cooperate. He accordingly indicated to the officers that he was concerned that individuals, who had exited a nearby barbershop and thus presumably had observed his arrest would tip off the individuals for whom he worked. Cummings
3 Officer Brown is also a member of the Lycoming County Drug Task Force.
4 requested to be moved around the corner and out of the view of these individuals. (Vol. I, 63-64, 98). Officer Brown observed a black male, who “looked like a barber” talking on a cell phone. (Vo. II, p. 65). Cummings stated that did not know the man, but opined that he knows “the guys I work for, he might be calling them now, he did know for sure.” (Vol. I, pp. 64, 99). Cummings told the officers that based on this he assumed that there would be a “tip off” to his South Williamsport suppliers of his arrest. (Vol. I, pp. 63-64, 98). Cummings further told the officers that “if we wanted to get to the place, we needed to hurry up and move . . . word on the street is going to hit his employers, the defendants, that he was busted.” (Vol. II, pp. 65-66, 69). The officers never questioned the individuals observed making telephone calls outside the barbershop, nor did Cummings identify those persons by name; he merely stated that the individuals “had contacts to those in the Southside, and get me out of here.” (Vol. II. 23-24). Notably, the individuals were never questioned by the officers, nor were they identified.
Uniformed officers transported Cummings to Williamsport City Hall, where he was interrogated. During interrogation, he continued to assert that his suppliers in Southside might have been tipped off about his arrest by the on-lookers who were talking on their cellular phones, and told the officers to go now or otherwise the evidence would be cleaned up, removed or destroyed. (Vol. II, p. 91). Cummings told the officers that he obtained the cocaine the night before at the apartment in South Williamsport from black males named Jerome and Keith. (Vol. II, p. 66).

Approximately fifteen to twenty minutes after arriving at Williamsport City Hall with Cummings, Lt. Ungard left and traveled to the vicinity of 1920 Riverside Drive. (Vol. I, 106-107). When Lt. Ungard arrived, he positioned himself so that he could observe the entry/exit street door leading into 1920 Riverside Drive. (Vol. I, p. 114). While Lt. Ungard was conducting this surveillance, he was aware that the Cummings’ alleged sources were African-American males who lived in the apartment building with a Caucasian female. Lt. Ungard observed an African-American male exit 1920 Riverside Drive, and was concerned that the black male was leaving the scene with drugs. Lt. Ungard also observed an African-American male enter the residence and a Caucasian female exit. (Vol. I, p. 113-114). Lt. Unguard made no attempt to detain or follow the exiting individuals. (Vol. I, p. 110-112).

While Lt. Ungard was conducting surveillance of the 1920 Riverside Drive location, Officer Dustin Kreitz (“Officer Kreitz”) of the Williamsport Police Department and Lycoming County Drug Task Force was in the process of assembling an entry team, as directed by Lt. Ungard. Based upon his surveillance, Lt. Ungard called Officer Kreitz and told him to speed up the process of assembling the entry team. (Vol. I, p. 114). Lt. Ungard also advised Officer Damon Hagan (“Officer Hagan”) of the Williamsport Police Department and Lycoming County Drug Task Force of Lt. Ungard’s plan to make entry into Apartment 1, 1920 Riverside Drive, detain any individuals inside, and then apply for a search warrant. (Vol. III, p. 20). Officer Hagan was told that “exigent circumstances” were present necessitating warrantless entry into the residence to prevent possible evidence destruction. (Vol. I, p. 114). Prior to the entry, Lt. Ungard also advised Sergeant Terrence O’Connell (“Sgt. O’Connell”) of the South Williamsport Police Department that he was concerned the occupants of Apartment 1, 1920 Riverside Drive had been tipped off and that evidence would be removed or destroyed. (Vol. V, p. 20; Vol. I, p. 117).

Ultimately, the entry team assembled at 1920 Riverside Drive with entry equipment, including a door ram, approximately one and a half hours after Cummings had been arrested. (Vol. 1, p. 117). The team entered the building through the street door and went up the narrow staircase to Apartment 1. (Vol. I, p. 117). With the ramming device in hand, Lt. Ungard knocked twice on the apartment door, announced “police,” and heard physical movement in the apartment. (Vol. I, pp. 69, 119, 121). A male voice asked “who is it” after the first knock and sounded as if he was “hurry[ing] away.” (Vol. I, p. 69). A female voice responded “who is it” to the second knock without hurrying away. (Vol. I, p. 69). Lt. Ungard broke through the door with the ramming device. (Vol. I, p. 69, 120). Simultaneous to the officers’ entry, apartment occupant Sophia Moyle (“Moyle”) unlocked the door, which is how the door was ultimately opened, and the officers gained access to Apartment 1. (Vol. I, p. 72, 120). The entry team entered the apartment with weapons drawn, dispersed to the various rooms within, and ordered the occupants to get down on the ground. (Vol. I, pp. 72-73, 121-122). The officers handcuffed the occupants behind their backs and searched them. (Vol. I, 121-122).

In the search of the apartment, a baggie containing suspected marijuana was found in the immediate physical proximity of an individual named Devin Hockaday (“Hockaday”). When questioned about the suspected marijuana, Hockaday told the police that it belonged to him. During the search of Hockaday’s person, officers found a sum of $403.00 in cash on him. (Vol. II, p. 75; Vol. I, p. 75; Vol. V, p. 44).

During the initial entry, Lt. Ungard found a safe in a bedroom closet with clothes strewn on top of it. (Vol. I, p. 126). Lt. Ungard testified that he did not move the save or try the lock until after the search warrant was obtained, at which point he removed it from the closet. (Vol. 1, pp. 77, 126). Officer Finnerty and Sgt. O’Connell, however, contradicted Lt. Ungard’s testimony, testifying that they observed the safe on the dining room table, and that St. O’Connell photographed it in that position prior to the search warrant being obtained. (Vol. I, p. 30-31; Vol. V, p. 22; Government Exhibit 20.2). A key that had been seized from Glaspie’s person was in the lock of the safe when St. O’Connell first photographed it. (Vol. V, p. 34, Gov’t Ex. 20.2).

Officers transported the suspects from the apartment to police headquarters after the entry. Lt. Ungard designated Officer Kreitz to secure, and be the affiant for, a search warrant. (Vol. I, p. 34). The warrant was signed and sealed at 8:20 p.m. (Vol. V, p. 112).

The affidavit states that on March 11, 2003, Confidential Informant #04-26 contacted the Lycoming County Drug Task Force and advised officers that “she could and has been regularly purchasing cocaine in the 1900 block of Riverside Dr. From two individuals who identified themselves as Jerome and Keith.” (Gov’t Ex. 3 at 1). However, as previously noted, Lt. Ungard testified that CI #04-26 told him the individuals selling narcotics at that location were named “Leon Robinson and Jerome George.”

The affidavit describes the encounter with Jencks and Cummings, but does not disclose the urgency conveyed to the officers regarding the imminent destruction of evidence from 1920 Riverside Drive based upon the observation of his arrest. The affidavit states that “Cummings advised officers that he was given the cocaine the night before inside 1920 Riverside Drive, Apt. #1 in South Williamsport by an individual who identified himself as Keith.” (Gov’t Ex. 3 at p.2).

With respect to the entry to Apartment 1, the affidavit states that: Officers traveled to 1920 Riverside Dr., Apt. #1 and made contact with the resident, Sophia Moyle. Inside the apartment officers made contact with individuals who identified themselves as Leon Glaspie, Jerome George, and Devin Hockaday. They all gave officers consent to search their persons. Glaspie had a safe key on his person. Glaspie also advised officers that he had placed marijuana inside the safe. Also inside the apartment, officers observed a safe, suspected marijuana, and a large amount of U.S. Currency lying in . . . plain view. (Gov’t Ex. 3 at p.2).

DISCUSSION: Due to the procedural posture of this case, namely the entry of guilty pleas by both Glaspie and George, Defendant Fields argues that these issues only remain for our consideration: first, whether exigent circumstances supported the warrantless entry into Apartment 1, 1920 Riverside Drive and second, whether the issued search warrant was based upon probable cause.
As a threshold matter, it is important to note that Fields has standing to challenge the search of Apartment 1, 1920 Riverside Drive. “Standing to challenge a search requires that the individual challenging the search have a reasonable expectation of privacy in the property searched . . . and that he manifest a subjective expectation of privacy in the property searched.” United States v. Baker, 221, F.3d 438, 441 (3d Cir. 2000)(citations omitted). It is uncontested that Fields was a resident of Apartment 1, 1920 Riverside Drive, and it is therefore axiomatic that he had an expectation of privacy therein.

A. Exigent Circumstances The governing jurisprudence of the Fourth Amendment to the United States

Constitution is the logical starting point in our analysis of the warrantless entry to Apartment 1, 1920 Riverside Drive, South Williamsport, Pennsylvania. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
U.S. Const. amend IV. It is well established that, absent an exception, warrantless searches and seizures inside an individual’s home are prohibited and presumptively unreasonable. See Payton v. New York, 445 U.S. 573 (1980); Johnson v. United States, 333 U.S. 10 (1914).

The Supreme Court has “emphasized that exceptions to the warrant requirement are ‘few in number and carefully delineated,’ . . . and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U.S. 740-749-750 (1984)(quoting United States v. United States District Court, 407 U.S. 297, 318 (1972)). “[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.” United States v. Johnson, 68 S. Ct. 367, 369 (1948).
A recognized exception to the warrant requirement that is relevant to our inquiry in this matter is that of exigent circumstances. Pursuant to the exigent circumstances exception, warrantless searches and seizures inside the home are presumptively unreasonable unless probable cause and exigent circumstance exist to justify the intrusion. See Steagald v. United States, 451 U.S. 204, 211 (1981); Payton v. New York, 445 U.S. 573, 586 (1980); see also United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973)(“Probable cause to believe contraband is present is necessary to justify a warrantless search, but it alone is not sufficient . . . Mere probable cause does not provide the exigent circumstances necessary to justify a search without a warrant.”).

The familiar hallmarks of exigent circumstances are hot pursuit, possibility that evidence may be removed or destroyed, and danger to the lives of officers or others. See United States v. Richard, 994 F.2d 244, 247-248 (5th Cir. 1993); see also Rubin, 474 F.2d at 268-269. “In these limited situations, the need for effective law enforcement trumps the right of privacy and the requirement of a search warrant, thereby excusing an otherwise unconstitutional intrusion.” United States v. Coles, 437 F.3d 361, 366 (2006)(citing Warden v. Hayden, 387 U.S. 294, 298-299 (1967)). The judging of the legality of warrantless searches involves “a delicate questioning of balancing the rights of the individual to be secure in his home against the interest of society in preventing the disappearance of evidence necessary to convict criminals.” Rubin, 994 F. 2d at 268.

In Rubin, the Court of Appeals for the Third Circuit identified various factors for courts to consider when determining whether a warrantless search was justified by exigent circumstances, and this framework continues to be utilized by the Third Circuit to date. These factors include:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed;
(3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are aware that the police are on their trail;
(5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic.”

United States v. Ingram, 2006 U.S. App. LEXIS 29221, *10 (3d Cir. 2006)(internal citations omitted). With these factors in mind, we turn to an analysis of the factual panoply in this case.

The Government asserts that the basis for exigent circumstances formed upon the arrest of Cummings and the information he subsequently proffered to the officers at that point. We accept that Cummings told the officers to “get him out of here” and that he speculated that the individuals observed down the street, some of whom may have been talking on cellular phones, knew his employers in South Williamsport. However, Cummings was admittedly unknown to the officers, as were the individuals down the street, and therefore the officers had no way of knowing whether Cummings was credible or reliable in his assertion that his employers were being “tipped off.” Moreover, the officers did not endeavor to engage the witnessing individuals in a discussion to corroborate Cummings’ assertions to them. In fact, Cummings was acting in accordance with the way many arrested drug dealers do; he was attempting to give the officers some information in the hopes that they would grant him consideration regarding his arrest. These experienced officers were, or should have been, well aware that upon his arrest, Cummings’ priorities were those of self-interest and self-preservation, and with cognizance of Cummings’ motivation, the officers should have proceeded with some caution upon any information proffered by Cummings. We find that there is no credible evidence that tends to show that the occupants of Apartment 1, 1920 Riverside Drive were aware that the police were on their trail. Any assertion in that regard involves rank speculation. Cummings’ suppositions could have been checked out by the officers, but they were not. Therefore, as a corollary, we cannot find, based upon Cummings’ assertions alone, that the officers had a reasonable belief that contraband was being removed or secreted.

Next and importantly, the actions of the officers following the arrest of Cummings do not indicate to the Court that they wholly believed it was urgent to enter Apartment 1, 1920 Riverside Drive to preserve evidence. Lt. Ungard did not immediately travel to the vicinity of 1920 Riverside Drive upon Cummings’ arrest, but rather accompanied him back to Williamsport City Hall. Thereafter, Lt. Ungard proceeded to 1920 Riverside Drive and commenced surveillance. He then observed individuals who fit the description of the suspected residents of Apartment 1 enter and leave the apartment building, however he made no attempt to question or follow these individuals. This is somewhat remarkable, in that Lt. Ungard testified that he was concerned these individuals were leaving with evidence. Further it is clear that Lt. Ungard and other officers were safely able to obtain surveillance positions, and there was no evident danger to the officers if they continued to maintain surveillance while a warrant was being sought.

After a searching review of the facts we are left with the inescapable conclusion that there existed no affirmative evidence that destruction of evidence was imminent, simply because no evidence indicated that the occupants of Apartment 1, 1920 Riverside Drive were aware of Cummings’ arrest or his accusations against them. Instead what we find is apparent post hoc reasoning by the Government that attempts to wedge this warrantless entry into a recognized exception to the warrant requirement. Essentially the Government is asking this Court to cure a conundrum of its own making by buying into an artificial construct of both exigent circumstances and probable cause, which we plainly cannot do.

Finally, we will also point out that the officers clearly did not believe that the information from CI #04-26 and Gregory Cummings standing alone provided a sufficient basis to create probable cause to support the issuance of a search warrant, or the sequence of their actions would have been wholly different. This is significant and telling. It compels us to call this case what it is: a clumsy attempt to circumvent the requirement of a search warrant that resulted from an inability to muster facts in support of a probable cause affidavit.

Accordingly, because we find no evidence of exigent circumstances, the entry into Apartment 1, 1920 Riverside Drive is necessarily unlawful and violative of the Fourth Amendment to the United States Constitution. The result of our holding is that we shall suppress all of the physical evidence searched and seized from Apartment 1, 1920 Riverside Drive.

B. Validity of the Search Warrant

The second issue Defendant Fields raises for our consideration is whether the search warrant issued on March 11, 2005 was properly supported by probable cause. The Defendant alleges that the warrant was improperly issued because it was based upon false statements and omissions in the affidavit of probable cause.

The seminal case that established a defendant’s right to overcome the presumption of the validity of a search warrant and challenge the issuance of a search warrant is Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the majority of the Supreme Court held that where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by an affiant in his affidavit for a search warrant, and if the alleged false statement was necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held so that the defendant may challenge the truthfulness of the factual statements made in the affidavits. If, at such a hearing, the defendant establishes by a preponderance of the evidence that: (1) the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions were material, or necessary, to the probable cause determination, then the affidavit’s false material set to one side. If the affidavit’s remaining content is insufficient to establish probable cause, the search warrant is voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the fact of the affidavit. Franks, 438 U.S. at 171 172.

The first step in the Franks analysis is to identify false information contained in the affidavit, as well as take into consideration material omissions or distortions. Wilson v. Russo, 212 F.3d 781, 787-88 (3d Cir. 2000). With respect to false statements, the Third Circuit hsa defined such assertions in this manner, “we have borrowed from the free speech arena and equated reckless disregard for the truth with a ‘high degree of awareness of [the statements’] probable falsity.” Id.

Regarding omissions, the Third Circuit has explained such “ are made with reckless disregard if an officer withholds a fact in his ken that ‘any reasonable person would have known that this was the kind of thing the judge would wish to know.’” Id. at 788.

The affidavit of probable cause contains numerous statements that are false on their face. We shall discuss each of the four notably false statements in turn. They are:

(1) That CI #04-26 told Lt. Ungard the names of the individuals from whom she purchased crack in South Williamsport were “Jerome and Keith.” In fact, the names given to Lt. Ungard by CI #04-26 were “Jerome and Leon Robinson.” At first blush, we could interpret the affiant’s inclusion of the name “Keith” instead of “Leon Robinson,” as an innocent mistake. However, when viewed in conjunction with the facts, the name substitution seems entirely purposeful. Cummings had told the officers that the names of his suppliers in South Williamsport were Jerome and Keith. Therefore, by representing to the magistrate that a CI, seemingly independent of Cummings, provided the same two names as Cummings had and also associated those individuals with drug dealing in South Williamsport, the affidavit becomes distinctly stronger since both names – not just one – match up. A continued reading of the affidavit reveals the following false statements, which also indicate to us that the name switch was not an innocent mistake.

(2) That officers “made contact” with resident Sophia Moyle upon arriving at Apartment 1, 1920 Riverside Drive. In fact, the officers first blew through the door of the apartment with a battering ram, and only after that did Moyle unlock the door for their entry. The affiant represented to the magistrate that their contact with Moyle was somehow passive, consensual or even happenstance, when in fact the affiant knew that the contact made with Moyle resulted from a battering ram being forced through her front door. It is axiomatic that “made contact” is not a euphemism for smashing in a door, and this benign statement is an attempt to gloss over the circumstances that give rise to the initial contact.

(3) That the individuals inside the apartment consented to a search of their persons. In fact, the individuals were ordered onto the floor by the officers, who had their weapons drawn, and then were handcuffed. In no way can a search of their persons be deemed consensual. This is an affirmative misrepresentation by the affiant.

(4) That the officers observed “a large amount of U.S. Currency lying . . . in plain view.” In fact, an amount of $403.00 in cash was seized from the person of Devin Hockaday. In no reasonable way could it have been described as lying in plain view. This is yet another misrepresentation of the facts.

It is abundantly clear that when the facts of this case as adduced at the hearing are examined against the backdrop of the affidavit of probable cause submitted by Officer Kreitz, the result is that the affidavit contains false statements that are entirely material. Officer Kreitz, a member of the entry team into the apartment, was fully aware of what occurred inside Apartment 1, 1920 Riverside Drive. Accordingly, on this record we can only conclude that the false statements made by Officer Kreitz in the affidavit were made, at worst, knowingly and intentionally, and, at best, with reckless disregard for the truth. \

As Franks directs, the next step in our analysis is to excise the false statements from the affidavit and step into the shoes of the magistrate judge, thereby making a determination whether probable cause exists to support the issuance of a warrant based upon the information that remains. What we are left with is (1) an uncorroborated statement from an unidentified CI that she purchased cocaine in the 1900 block of Riverside Drive and (2) a statement from Cummings, made upon his arrest, indicating that he was given cocaine the night before in the apartment and was instructed to sell the drugs. Probable cause is a “practical, nontechnical conception . . . [it] is a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 231-232 (1983). The Supreme Court has instructed that with respect to unidentified informants, a “practical, common-sense decision” is to be made by the magistrate, “whether given all the circumstances set forth in the affidavit . . . including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 239.

When the tainted portion of the affidavit is excised, what remains are bare assertions made by a CI and Cummings, a drug dealer previously unknown to the officers. The affiant does not, in any way, vouch for the credibility or veracity of the CI. With respect to Cummings, the affiant describes the witnessed drug transaction within the affidavit, but cannot, and does not, have a basis to determine Cummings’ credibility. Moreover, the information given by the CI and Cummings are not married when the false statements are excised, but only loosely linked.

Applying good common-sense to the facts that remain, we cannot find, nor do we believe a magistrate would have found, a “fair probability [existed] that contraband or evidence of a crime” would have been found at Apartment 1, 1920 Riverside Drive. Moreover, if the magistrate, as we are, had been apprised of what was omitted from the affidavit – the warrantless, forced entry – the facts take on an entirely different tack. With the entire factual record now before us, we cannot prudently find that probable cause existed to support the warrant.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Motion to Suppress (doc. 49) is GRANTED in part to the following extent:
All physical evidence searched and seized from Apartment 1, 1920 Riverside Drive, South Williamsport, Pennsylvania that is attributable to Defendant Fields is SUPPRESSED.
Defendant Jerome George’s Motion to Suppress (doc. 66) is DENIED as MOOT for the reasons stated herein.
Defendant Leon Glaspie’s Supplemental Suppression Motion (doc. 87) is DENIED as MOOT for the reasons stated herein.
Defendant Jerome George’s Supplemental Suppression Motion (doc.102) is DENIED as MOOT for the reasons stated herein.
Defendant Leon Glaspie’s Second Supplemental Motion to Suppress (doc. 109) is DENIED as MOOT for the reasons stated herein.

John E. Jones III United States District Judge

In a 6-2 ruling, the high court accepted the state’s argument that the policy, which is one of the most restrictive in the nation, was needed to encourage better behavior among the “worst of the worst” in the state prison system.

“While we do not deny the constitutional importance of the interests in question, we find, on the basis of the record now before us, that prison officials have set forth adequate legal support for the policy,” wrote Justice Stephen G. Breyer.

The decision came in a case brought by a Pittsburgh man, Ronald Banks, 41, who is serving a life sentence for murder and is now confined in the long-term segregation unit at the state prison in Fayette.

Banks went to court on behalf of himself and other inmates in the 40-prisoner unit in a constitutional test of how far prisons can go in restricting reading material and personal photos without violating the First Amendment.

Andrew Shubin, an attorney for Banks, said he was disappointed but not surprised by the ruling. “Prisoners face additional hurdles — extraordinarily high hurdles — on issues that touch on security and rehabilitation,” he said.

Prison officials would not disclose Banks’ disciplinary history, but his prison behavior earned him a cell in long-term segregation, customarily a place for inmates who pose security risks or have a history of escape or violence.

Inmates placed in the most restrictive part of that unit can have religious and legal periodicals, writing paper and two paperback books, but not mainstream newspapers, magazines or personal photographs.

Such prisoners also are kept in solitary confinement for 23 hours a day with no access to radio or TV, and they have phone privileges only in an emergency and one visit a month from a family member.

While Banks challenged the ban on newspapers as excessive, attorneys for state prison officials said the policy was necessary to give inmates an incentive to improve their behavior, and for safety reasons.

The high court held in a 1987 case that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”

When a regulation “impinges” on a constitutional right, the court said then, the rule is valid if it is reasonably related to “legitimate penological interests.”

Breyer concluded that, under that standard, Banks did not show that the Pennsylvania regulation was unreasonable. Breyer was joined by Chief Justice John G. Roberts Jr., and Justices David H. Souter and Anthony M. Kennedy. Justice Clarence Thomas concurred in the decision, but wrote a separate opinion that was joined by Justice Antonin Scalia.

Justice John Paul Stevens, one of the two dissenters, said that the ban on newspapers and photographs was excessive.

“What is perhaps most troubling about the prison regulation at issue in this case is that the rule comes perilously close to a state-sponsored effort at mind control,” he wrote.

Justice Ruth Bader Ginsburg, the other dissenter, said she found some of the state’s justification “too tenuous to be plausible.” Inmates, she said, were unable to get the Christian Science Monitor but allowed to have the Jewish Daily Forward, barred from reading about the war in Iraq and Hurricane Katrina but allowed to read romance novels.

The high court ruling reversed last year’s decision by the Philadelphia-based U.S. Court of Appeals, which concluded, in a 2-to-1 ruling, that the policy went too far. The newest justice, Samuel A. Alito Jr., was the dissenter in that case when he was on the Third Circuit. He did not consider the case in the high court.

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Copyright (c) 2006, The Philadelphia Inquirer

Varner, who began his career in 1972 as an SCI Huntingdon guard and who became Greene’s superintendent in May 1997, was punished in April with a $6,600-a-year pay cut and transfer to SCI Retreat, a medium-security Luzerne County prison. He declined to discuss his time at SCI Greene.

Varner replaced James Price after Price, another alumni of Huntingdon’s guard ranks, was named superintendent at Pittsburgh after last year’s escape of six inmates there. Price, Greene’s first superintendent, did not respond to requests for an interview.

Former guard Lavia said SCI Greene deteriorated after Price departed and Varner took over: “When Price left, that place went downhill. It was a totally hateful place to work. Once he left, the leash was taken off. Varner’s attitude was that this is the toughest camp in the state. That’s the way it’s going to be. As a guard, you were right in somebody’s face all the time.”

Lavia noted that Varner himself ordered the RHU wall pad. “That’s what I couldn’t believe. I said to myself, he’s just asking for trouble here. He’s admitting he’s doing something wrong. We know we’re banging them against the bricks.”

Varner’s transfer was significant to prison policy observers.

“It’s a pretty extraordinary thing, in my view,” said Andrew Shubin, a State College lawyer who has filed numerous civil rights suits on inmates’ behalf. “The old (department) always promoted problematic employees, but it’s a nice turnaround that Martin Horn has disciplined somebody who has had problems.”

Gregory White, the superintendent Price replaced at Pittsburgh, was demoted and sent to Greene as Varner’s assistant following the escape at the Woods Run prison. White was transferred again in June, to SCI Greensburg.

Philip Johnson, a native of the North Side who began his career as a Pittsburgh prison guard, is trying to put the pieces back together at Greene. He concedes the challenge but plans no wholesale overhaul.

“I was not sent down here to clean house, swing the axes. It was recognized that there was a problem with the management style.” At the same time, “I don’t want to sit back too long and do nothing.”

One of Johnson’s first changes was to revise the “very restrictive” grievance procedure that spurred the Brandon incident last year. The buck had been constantly passed on grievances. When an inmate filed one against an employee, lower-level supervisors passed it up the line to Beerman.

“No one was taking the responsibility,” Johnson said. “Consequently, it was going straight to the superintendent’s assistant.”

Beerman, inundated with grievances, changed the process to require that inmates complete a grievance request slip before getting a grievance form. Inmates say guards often refused their requests for such slips, so they couldn’t file grievances.

When Johnson took over in May, he changed the policy, saying, “the whole system itself did not work.” Grievance forms are available in boxes in the general population blocks and by request in the RHU.

Johnson also expanded the list of items that can be purchased by inmates in administrative custody in the RHU. And he ordered legal material for death row inmates to be stored in their blocks, instead of in another part of the RHU, and let inmates have access to legal material once a week rather than monthly.

RHU guards have been told to temper commands during strip searches and be more patient. Johnson spoke with each guard about department policies, especially regarding use of force.

“I’ve addressed every shift at roll call about what my personal philosophy of the institution is,” he said. “If we go by the (department’s use of force) policy, there won’t be any problems. There aren’t any gray areas about when force can be used.”

Johnson is reluctant to discuss what happened at Greene before he arrived but said he has reviewed some RHU videos. He has no problem with discipline handed out by his bosses in Camp Hill. “My position is to move this institution forward. I can’t continue to second-guess decisions that have already been made.”

Many guards and inmates have known Johnson for years, mainly his 10 1/2 at SCI Pittsburgh. He plans to keep inmates’ respect by dealing with them honestly.

“If you’re honest with the inmates and tell them what you can do and tell them what you can’t do, they’ll respect that. It’s not our job to punish them further than what the courts have already done.”

A state appeals court last week overturned the indecent exposure conviction of Charles Stitzer, who was wearing only shoes and a watch while gardening in his back yard nearly two years ago when he was arrested after a neighbor complained to police.

Is he happy?

“You’re damn right, you better believe it the strain I’ve been under,” Stitzer said Monday. “It’s been a hell of a load on my mind. It’s been a big financial drain.”

The decision was filed last week by a three-judge Superior Court panel, which directed Centre County Court to acquit Stitzer, who lives at 217 E. College Ave. in Pleasant Gap.

Stitzer was observed nude in his back yard by a neighbor, Pam Watkins, from a distance of 60 to 65 yards at sunset on June 22, 2000. Watkins could not be reached for comment Monday.

Stitzer’s case at first was dismissed at a preliminary hearing by District Justice Brad P. Lunsford, but he was rearrested and convicted at a December 2000 jury trial presided over by Centre County President Judge Charles C. Brown Jr.

After Stitzer was convicted, Brown sentenced him in January 2001 to two years probation.

The appeals court said backyard nudity observed from such a distance at sunset did not satisfy an element of the law that requires others to be present for indecent exposure to occur.

“We vacate the conviction and remand for the trial court to enter a judgment of acquittal,” the appeals court ruled last week.

State College lawyer Andrew Shubin, who represented Stitzer in the appeal, said the appellate court decision upheld a broad civil liberty, especially significant since the issue of civil liberties has come under new scrutiny since Sept. 11.

“The principle that’s important here is that a person has a right to do on his property things that he may not have a right to do in public,” Shubin said. “If you don’t like what you see, you avert your eyes.

“If he had done that at a baseball game, it would have been different,” Shubin said.

Assistant District Attorney Lance Marshall, who prosecuted Stitzer, said Monday that he does not plan to appeal the appellate court judgment.

Stitzer, a retired mechanical draftsman, said he likes to keep cool on hot summer evenings, sometimes wears a thong and often sat out nude on his side porch in the dark, though neighbors’ floodlights have lately lit up the night.

“Why sit out there with those hot shorts on?” Stitzer said. “Why shouldn’t I sit out there without anything on?”

They will each get $300 in cash and disappear until summoned again.

Nobody is ever to know the names of the people assigned to dispatch the first convict to be executed in Pennsylvania since 1962.

The mechanics of capital punishment in Pennsylvania involve a series of meticulous protocols shrouded in sometimes bizarre secrecy. Department of Corrections officials, for instance, won’t say precisely what chemicals will be used for the state’s first lethal injection.

But they will say that the combination of drugs that will put Zettlemoyer into a deep sleep and then stop his heart cost somewhere between $300 and $400.

“The department fails to see what public purpose would be filled by identifying the chemical agents,” said Ben Livengood, spokesman for the department.

“They want to anesthetize the process. It makes it digestible — the ruse that it’s a medical process,” said Andrew Shubin, a State College lawyer and death penalty opponent.

The “execution chamber” is now referred to by corrections officials as ”the injection room.”

The room is the same one in which 348 men and two women were executed in the state’s electric chair between 1915, when Rockview opened, and 1962, when Elmo Smith of Montgomery County became the last person put to death in Pennsylvania by electrocution.

The chair is now in storage with the state’s Historical and Museum Commission.

While state officials won’t identify the chemicals, a four-member contingent visited Huntsville, Texas, in March to confer with officials there. Texas has been executing inmates by lethal injection since 1982 and has carried out more executions than any other state.

Texas uses a barbiturate called sodium thiopental, followed by a paralyzing agent called pancuronium bromide, which stops a person’s breathing. A third chemical, potassium chloride, is then injected into the IV line, stopping the heart.

In Illinois, corrections official Nick Howell watched as executioners used the same three chemicals to dispatch convicted murderers James Free and Hernando Williams and serial killer John Wayne Gacy.

“Free gave out a snort or a snore. Williams did nothing. Gacy gave some sort of respiratory sound,” he said. It took six to seven minutes for the men to die.

Pennsylvania changed its legal method of execution from electrocution to lethal injection in December 1990. Midway through the next year, corrections officials put three people under a retainer, $500 apiece annually, to carry out the executions. They also get $150 each for mock execution “drills.” They are the same three who will get $300 apiece on May 2 for the first execution in 33 years.

State officials will give few details about the execution team except to say its members are neither prison employees nor doctors, and that they are ”technically qualified” to insert IV tubes and administer drugs intravenously. Under Pennsylvania law, the only people other than physicians authorized to administer IV drugs are nurses, physician’s assistants and paramedics.

“There are probably fewer than five people in the entire department who know their identities,” Livengood said. The three are issued prison credentials with assumed names. When they go through mock execution training drills, the prison staff members who join them don’t know their identities.

They will be brought to the prison by a staff member who will pick them up at a predetermined location.

From there, the team will go to the DW building, a squarish block structure that stands directly behind the grand white main prison building. DW stands for “deputy warden,” although staff, prisoners and lawyers alike also call it the “death warrant” building.

Zettlemoyer will be waiting in a second-floor cell. Officials won’t say precisely when he will arrive from the State Correctional Institution at Pittsburgh.

But when Florencio Rolan was scheduled to die last month for a 1984 murder in Philadelphia, he was taken to Rockview at midday of his planned execution day. Prison neighbors say state troopers blocked off roads as the vehicle carrying Rolan neared. Prisoners who work the fields and orchards of the prison were locked down in their cells immediately after their evening meal. All approaches to the prison were sealed off at 6 p.m. the preceding night.

Rolan was saved by a court-ordered stay of execution.

When Zettlemoyer arrives, he’ll be fingerprinted to verify that the right man has arrived. Transfer documents will include a recent photograph. He will be asked if he would like to issue a final statement. He can write it down or dictate it.

The condemned man will be taken to the second floor and put in one of six cells lining a hallway adjacent to the injection room. His only view will be a patch of sky visible in one of the windows on the other side of the hall, behind a screen of bars.

At some point on the afternoon of May 2, prison officials will deliver a menu from the prison cafeteria for his final meal. The menu includes grilled steak, roast beef, a cheeseburger, fried chicken — “things you’d expect to find on a menu,” as Livengood puts it. No alcoholic drinks are permitted.

Department-approved immediate family members will be allowed a final visit. One clergyman and the inmate’s attorney will be allowed to visit “as needed.” Around 8:30 p.m., prison officials will give Zettlemoyer another chance to make a final statement.

Shortly after 9:30 p.m., a team of prison staff members will wheel a metal hospital gurney to his cell. A series of straps will be used to hold him down. A separate team will stand by, Livengood said, “if there’s a need to do a cell extraction” should the prisoner be uncooperative.

Those who know Zettlemoyer say he’s an utterly beaten-down man, profoundly withdrawn and unlikely to fight.

Larry Fitzgerald, a spokesman at Huntsville State Prison in Texas, has witnessed five lethal injection executions this year and said he had heard no stories of resistance. Prisoners are often remarkably cooperative.

“In those last six hours, the prisoners I have talked to and met are resigned to this thing, or are inquisitive about exactly what’s going to happen,” Fitzgerald said. In one instance, a prisoner with collapsed veins because of intravenous drug use pointed out good veins to the injection team.

There have been glitches in the injection process, says a report by the National Coalition to Abolish the Death Penalty. In one, Ricky R. Rector, a brain-damaged convict put to death for killing a sheriff in Arkansas, moaned for 40 minutes as an injection team tried to locate a usable vein in his arms.

Under Pennsylvania’s protocols, Zettlemoyer will be wheeled down the hallway and into the injection room. The front of the gurney will be latched to the wall behind him. Both arms will be extended, crucifixion style, and two members of the injection team will take over. The third will be on hand as a backup.

Team members will insert catheters into both arms and hook them to tubes running through the small opening beneath a two-way mirror on the wall behind Zettlemoyer’s head. On the other side are bags with a saline solution that will drip into the tubes. The injection team members will go into that small room — which previously housed the transformer for the electric chair — and watch through the mirror.

Remaining in the injection room will be Robert W. Meyers, deputy warden for operations, and Harvey Yancey, the major of the guard, the prison’s highest- ranking uniformed officer. Meyers will stand at a black wall telephone near the gurney, on an open telephone line to the office of Warden Joseph Mazurkiewicz. Mazurkiewicz will be on an open line to the office of Gov. Ridge, who signed the execution order.

On a shelf next to the telephone will be a microphone and a small intercom box, linking the deputy warden by voice with the team in the injection room.

Yancey will draw open a blue curtain, revealing a large glass window. Behind it will be the clergyman, six news reporters and six “reputable adult citizens” selected by Mazurkiewicz, all seated in folding metal chairs.

They will see Zettlemoyer’s feet, which will point toward the window. His face will be visible on one of several mirrors set up to provide a view. He won’t be asked to give any last words.

At 10 p.m., barring word from Gov. Ridge, one or both members of the execution team — it’s up to them to decide — will insert a needle and syringe into one of the two IV lines and pump in the barbiturate. Moments later, they will add the paralyzer, then the heart stopper.

What will it look like?

“It’s kind of like watching someone go to sleep,” Fitzgerald said. When the lungs collapse, he said, “they make kind of a cough sound. By that point, the inmate’s dead.”

And at that point, the deputy warden will summon a doctor, who has been waiting in an adjacent room, forbidden by his Hippocratic oath and medical society rules to participate physically in an execution. He will check for Zettlemoyer’s heartbeat and pulse. If all has gone as planned, there will be none.

He will look at a clock that hangs on the wall directly above Zettlemoyer’s head and announce the hour. That’s what he’ll list on the state certificate — that, 14 years, six months and 17 days after he killed Charles DeVetsco, Keith Zettlemoyer is dead.

When a man signed on to be a guard at the State Correctional Institution at Rockview back then, nobody asked for volunteers to take condemned prisoners to the electric chair. It was part of the job.

On Sept. 27, 1955, Cassady was one of five guards assigned to take convicted killer John Wesley Wable from the front gate to the electric chair upstairs, strap him in, and turn the proceedings over to the never-seen executioner who stood behind a wall.

“It hits you later,” the retired guard remembered. He described the impact as a “kind of nervous” sensation.

Now, a decade after Cassady retired from Rockview, and 33 years since the last execution was carried out, a new generation of guards and their neighbors will have something to get used to. Barring a last-minute stay, Keith Zettlemoyer, 39, tonight will be strapped to a gurney, wheeled into the room that once held the electric chair, and put to death by lethal injection.

Rockview, the prison situated near this Centre County town, has been the official place of execution since it opened in 1915.

In a town where a prison is one of the major employers, and the rolling farmland surrounding it often is dotted with jumpsuited prisoners working the fields and orchards, residents simply have gotten used to its implications.

“You grow up around here, it’s around, like your school or your church or your shopping center,” said Jim Struble, as he stood in the garage his family has run since 1959. Across Route 26, a Rockview inmate worked a patch of field.

In the homes and businesses that surround the prison, the moan of a siren warns residents when someone has wandered from the prison.

“It’s the eeriest sound you ever heard,” said Nancy Stoner, standing behind the counter of the lawn mower shop she runs with her husband, Tom. “We don’t really get too excited. We just go pull the keys out of our car.”

Tom Stoner was in high school in 1962 when Elmo Smith, of Philadelphia, was

put to death in the electric chair, the last time the chair was used.

“I can remember a lot of talk on it,” he said. “I think there were a lot of mixed feelings. You agree with capital punishment, until the day of reckoning comes.”

After that, Stoner said, you still agree with capital punishment, but the sense of gravity sets in.

Almost everyone encountered on a tour of the area supported capital punishment. “There’s only one way to stop crime, and that’s to scare ‘em to death,” said Struble, the garage owner.

Dennis May, who runs a hardware store in nearby Pleasant Gap, played ball with ‘em.

In May’s youth, Rockview fielded a team in the local athletic leagues.

“They had a good ball team, I’ll tell you,” said May, who grew up near the prison. His dad, Earl, was a justice of the peace who once was deputized to witness one of the electrocutions.

Ten miles away in State College, home to Penn State, only a few voices have been raised against today’s scheduled execution.

Students at Penn State, said Andrew Shubin, a lawyer who specializes in representing prisoners, aren’t readily aware of the prison and its implications.

“They live by it, but don’t realize,” Shubin said.

He described State College’s activist community as small.

In Florida and Texas, college students have been known to turn out to cheer executions. To date, says Angela Pomponio, editor of The Daily Collegian, no demonstrations for or against appear to have been planned at Penn State.

“We’re in the middle of finals week right now,” she said.

At a coffee house on Beaver Avenue, John Black, a lifelong leftist and refugee from Hitler’s Germany, fairly growled at the thought of the state’s death row.

“Most of the people are there because of poverty. Lack of education and poverty,” Black said. “I don’t see any professors on death row, and I don’t see any millionaires on death row.”

But like many other people in Centre County, Black isn’t about to say ”never” to the idea of a death penalty.

“I’m not against the death penalty per se,” Black said. “There are some people in this world I would gladly pull the trigger on. Do you think we could have possibly had a problem with hanging Hitler?”

They will each get $300 in cash and disappear until summoned again.

Nobody is ever to know the names of the people assigned to dispatch the first convict to be executed in Pennsylvania since 1962.

The mechanics of capital punishment in Pennsylvania involve a series of meticulous protocols shrouded in sometimes bizarre secrecy. Department of Corrections officials, for instance, won’t say precisely what chemicals will be used for the state’s first lethal injection.

But they will say that the combination of drugs that will put Zettlemoyer into a deep sleep and then stop his heart cost somewhere between $300 and $400.

“The department fails to see what public purpose would be filled by identifying the chemical agents,” said Ben Livengood, spokesman for the department.

“They want to anesthetize the process. It makes it digestible — the ruse that it’s a medical process,” said Andrew Shubin, a State College lawyer and death penalty opponent.

The “execution chamber” is now referred to by corrections officials as ”the injection room.”

The room is the same one in which 348 men and two women were executed in the state’s electric chair between 1915, when Rockview opened, and 1962, when Elmo Smith of Montgomery County became the last person put to death in Pennsylvania by electrocution.

The chair is now in storage with the state’s Historical and Museum

Commission.

While state officials won’t identify the chemicals, a four-member contingent visited Huntsville, Texas, in March to confer with officials there. Texas has been executing inmates by lethal injection since 1982 and has carried out more executions than any other state.

Texas uses a barbiturate called sodium thiopental, followed by a paralyzing agent called pancuronium bromide, which stops a person’s breathing. A third chemical, potassium chloride, is then injected into the IV line, stopping the heart.

In Illinois, corrections official Nick Howell watched as executioners used the same three chemicals to dispatch convicted murderers James Free and Hernando Williams and serial killer John Wayne Gacy.

“Free gave out a snort or a snore. Williams did nothing. Gacy gave some sort of respiratory sound,” he said. It took six to seven minutes for the men to die.

Pennsylvania changed its legal method of execution from electrocution to lethal injection in December 1990. Midway through the next year, corrections officials put three people under a retainer, $500 apiece annually, to carry out the executions. They also get $150 each for mock execution “drills.” They are the same three who will get $300 apiece on May 2 for the first execution in 33 years.

State officials will give few details about the execution team except to say its members are neither prison employees nor doctors, and that they are ”technically qualified” to insert IV tubes and administer drugs intravenously. Under Pennsylvania law, the only people other than physicians authorized to administer IV drugs are nurses, physician’s assistants and paramedics.

“There are probably fewer than five people in the entire department who know their identities,” Livengood said. The three are issued prison credentials with assumed names. When they go through mock execution training drills, the prison staff members who join them don’t know their identities.

They will be brought to the prison by a staff member who will pick them up at a predetermined location.

From there, the team will go to the DW building, a squarish block structure that stands directly behind the grand white main prison building. DW stands for “deputy warden,” although staff, prisoners and lawyers alike also call it the “death warrant” building.

Zettlemoyer will be waiting in a second-floor cell. Officials won’t say precisely when he will arrive from the State Correctional Institution at Pittsburgh.

But when Florencio Rolan was scheduled to die last month for a 1984 murder in Philadelphia, he was taken to Rockview at midday of his planned execution day. Prison neighbors say state troopers blocked off roads as the vehicle carrying Rolan neared. Prisoners who work the fields and orchards of the prison were locked down in their cells immediately after their evening meal. All approaches to the prison were sealed off at 6 p.m. the preceding night.

Rolan was saved by a court-ordered stay of execution.

When Zettlemoyer arrives, he’ll be fingerprinted to verify that the right man has arrived. Transfer documents will include a recent photograph. He will be asked if he would like to issue a final statement. He can write it down or dictate it.

The condemned man will be taken to the second floor and put in one of six cells lining a hallway adjacent to the injection room. His only view will be a patch of sky visible in one of the windows on the other side of the hall, behind a screen of bars.

At some point on the afternoon of May 2, prison officials will deliver a

menu from the prison cafeteria for his final meal. The menu includes grilled

steak, roast beef, a cheeseburger, fried chicken — “things you’d expect to find on a menu,” as Livengood puts it. No alcoholic drinks are permitted.

Department-approved immediate family members will be allowed a final visit. One clergyman and the inmate’s attorney will be allowed to visit “as needed.” Around 8:30 p.m., prison officials will give Zettlemoyer another chance to make a final statement.

Shortly after 9:30 p.m., a team of prison staff members will wheel a metal hospital gurney to his cell. A series of straps will be used to hold him down. A separate team will stand by, Livengood said, “if there’s a need to do a cell extraction” should the prisoner be uncooperative.

Those who know Zettlemoyer say he’s an utterly beaten-down man, profoundly withdrawn and unlikely to fight.

Larry Fitzgerald, a spokesman at Huntsville State Prison in Texas, has witnessed five lethal injection executions this year and said he had heard no stories of resistance. Prisoners are often remarkably cooperative.

“In those last six hours, the prisoners I have talked to and met are resigned to this thing, or are inquisitive about exactly what’s going to happen,” Fitzgerald said. In one instance, a prisoner with collapsed veins

because of intravenous drug use pointed out good veins to the injection team.

There have been glitches in the injection process, says a report by the National Coalition to Abolish the Death Penalty. In one, Ricky R. Rector, a brain-damaged convict put to death for killing a sheriff in Arkansas, moaned for 40 minutes as an injection team tried to locate a usable vein in his arms.

Under Pennsylvania’s protocols, Zettlemoyer will be wheeled down the hallway and into the injection room. The front of the gurney will be latched to the wall behind him. Both arms will be extended, crucifixion style, and two members of the injection team will take over. The third will be on hand as a backup.

Team members will insert catheters into both arms and hook them to tubes running through the small opening beneath a two-way mirror on the wall behind Zettlemoyer’s head. On the other side are bags with a saline solution that will drip into the tubes. The injection team members will go into that small room — which previously housed the transformer for the electric chair — and watch through the mirror.

Remaining in the injection room will be Robert W. Meyers, deputy warden for operations, and Harvey Yancey, the major of the guard, the prison’s highest- ranking uniformed officer. Meyers will stand at a black wall telephone near the gurney, on an open telephone line to the office of Warden Joseph Mazurkiewicz. Mazurkiewicz will be on an open line to the office of Gov. Ridge, who signed the execution order.

On a shelf next to the telephone will be a microphone and a small intercom box, linking the deputy warden by voice with the team in the injection room.

Yancey will draw open a blue curtain, revealing a large glass window. Behind it will be the clergyman, six news reporters and six “reputable adult citizens” selected by Mazurkiewicz, all seated in folding metal chairs.

They will see Zettlemoyer’s feet, which will point toward the window. His face will be visible on one of several mirrors set up to provide a view. He won’t be asked to give any last words.

At 10 p.m., barring word from Gov. Ridge, one or both members of the execution team — it’s up to them to decide — will insert a needle and syringe into one of the two IV lines and pump in the barbiturate. Moments later, they will add the paralyzer, then the heart stopper.

What will it look like?

“It’s kind of like watching someone go to sleep,” Fitzgerald said. When the lungs collapse, he said, “they make kind of a cough sound. By that point, the inmate’s dead.”

And at that point, the deputy warden will summon a doctor, who has been waiting in an adjacent room, forbidden by his Hippocratic oath and medical society rules to participate physically in an execution. He will check for Zettlemoyer’s heartbeat and pulse. If all has gone as planned, there will be none.

He will look at a clock that hangs on the wall directly above Zettlemoyer’s head and announce the hour. That’s what he’ll list on the state certificate — that, 14 years, six months and 17 days after he killed Charles DeVetsco, Keith Zettlemoyer is dead.

A defense attorney in a federal drug case in which one of the officers, Cpl. Dustin Kreitz, was a lead investigator wants to know.

Andrew Shubin, who represents Markeif Fields, raises in a court document the allegation that the U.S. attorney’s office might have withheld materials in that case to avoid a credibility issue with Kreitz.

“I want the judge to determine when the U.S. attorney’s office was aware Kreitz was being targeted,” the State College lawyer requested in the filing. U.S. Middle District Judge John E. Jones Jr. yesterday allowed Shubin to file a motion that could lead to that information.

U.S. Attorney Thomas A. Marino denied any information was withheld from the defense.

Jones in December granted a defense motion to suppress evidence in the Fields case obtained from a South Williamsport apartment and wrote that Kreitz intentionally, or with reckless disregard for the truth, made false statements to obtain a search warrant.

In May, the judge issued a second order in which he stated he wrongly impugned Kreitz’s character. He commented he would not have had to correct his first order “had the government not made such utter hash out of its presentation.”

About a month later, Kreitz and Patrolman Thomas H. Ungard Jr. were charged at the recommendation of a statewide grand jury with a number of counts, including tampering with public records.

The U.S. attorney’s office in Williamsport worked closely with the Lycoming County Drug Task force when Ungard, then a city police lieutenant, was its coordinator and Kreitz was his assistant, Shubin states. In the Fields case, evidence was lost and then rediscovered, he said.