HomeMy WebLinkAbout01-1167 CRIMINALCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROBERT FISHER, III
NO. 01-1167 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., August 14, 2002.
In this criminal case, Defendant was found guilty following a bench trial of
possession of a firearm without a license.~ He has appealed to the Pennsylvania Superior
Court from the judgment of sentence]
The sole basis for the appeal is the propriety of a pretrial order denying a motion
to suppress evidence.3 Defendant's motion to suppress was premised upon (a) an alleged
lack of a lawful basis for a stop of his vehicle, (b) an alleged lack of a lawful basis for a
seizure of a firearm from his vehicle, and (c) an alleged lack of a lawful basis for receipt
by police of certain statements by Defendant, prior to and after administration of
Miranda4 warnings,s
This opinion in support of the denial of Defendant's motion to suppress is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
~ Order of Ct., Apr. 1, 2002. Defendant was found not guilty of a second charge--driving
without a license. Id
2 Def.'s Notice of Appeal, filed June 25, 2002. Defendant was sentenced on May 28,
2002, to not less than twelve months nor more than twenty-four months in a state
correctional institution. Order of Ct., May 28, 2002. The sentence was to run concurrently
with a prior sentence in an unrelated matter of not less than two years nor more than eight
years in a state correctional institution. Id; N.T. 2-3, Sentencing Hr'g, May 28, 2002.
3 Def.'s Statement of Matters Complained of on Appeal, filed July 15, 2002.
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1969).
s Def.'s Omnibus Pre-Trial Mot. To Suppress, filed August 21, 2001.
STATEMENT OF FACTS
As the result of an incident on Saturday, April 7, 2001,6 Defendant was charged
with possession of a firearm without a license7 and driving without a license.8 On August
21, 2001, he filed a motion to suppress evidence.9
The motion challenged the legality of (a) a stop of Defendant's vehicle, (b) the
seizure of a gun from the vehicle, and (c) the receipt of statements from Defendant by
police, prior to and after the administration of Miranda warnings,l° A hearing on the
motion was held on January 9, 2002.
The evidence at the suppression hearing may be summarized as follows:
On Saturday, April 7, 2001, at about 9:15 p.m.,il Defendant12 was driving a dark
gray Ford Taurus automobile13 with a headlight out, 14 bearing Pennsylvania license plate
number DVN6039,15 in an easterly direction on the Pennsylvania Turnpike,16 east of the
Blue Mountain interchange (Exit 15). 17 Defendant was the sole occupant of the vehicle.la
The evening was dark, rainy and misty.19
6 N.T. 4, Suppression Hr'g, Jan. 9, 2002 (hereinafter N.T. ~.
7 Act of Dec. 6, 1972, P.L. 1482, § 1, as amended 18 Pa. C.S. § 6106(a)(1) (Supp. 2002).
8 Act of June 17, 1976, P.L. 162, § 1, as amended 75 Pa. C.S. § 1501(a) (Supp. 2002).
9 Def.'s Omnibus Pre-Trial Mot. To Suppress, filed Aug. 21, 2001.
l°Id'
ll N.T. 4-5.
12 N.T. 17-18.
13 N.T. 15, 20, 26, 28.
14 N.T. 28-29.
15 N.T. 9, 12, 15.
16 N.T. 4.
17 N.T. 4.
la N.T. 17.
19 N.T. 5-6.
2
On this occasion Defendant's operation of his vehicle was unsafe and erratic. He
constantly sped up and slowed down, crossed from one lane to the other, and appeared to
be playing "tag" with other traffic.2° At one point, traveling at sixty miles per hour,2~ he
suddenly pulled from the right lane into the passing lane in front of another vehicle, with
only a foot of space between the two vehicles.22
This incident was described by the driver of the other vehicle, George Bottenfield,
as follows:
[There was] a lot of traffic and stuff, and then this one car was like
weaving in and out, speeding up and down and in and that, and [my
wife and I] both commented to each other, somebody is going to have
an accident here or something. Then just like that, she screamed. I
saw this car come from my right into the passing lane in which I
couldn't even see the license plate on this car, that's how close he was
to the front of my truck coming over. I said, I better call this in before
somebody gets hurt.23
The impression conveyed by Defendant's driving was that Defendant was possibly
drunk.24
After avoiding a collision by applying his brakes,2s Mr. Bottenfield utilized the
*11 Turnpike emergency number to report the situation to authorities.26 He identified
himself and his location on the Turnpike (between Exits 15 (Blue Mountain) and 16
(Carlisle), in Cumberland County), described the vehicle being driven by Defendant,
provided its license number, and recounted the erratic and unsafe driving he had
observed, including the near collision between his truck and Defendant's car.27 He also
2° N.T. 7.
2~ N.T. 6.
22 N.T. 6-7.
23 N.T. 5 (emphasis added).
24 N.T. 8.
25 N.T. 11.
26 N.T. 5.
27 N.T. 8-9.
3
reported his opinion that the driver might be drunk.28 A second report to the authorities
concerning Defendant's dangerous driving added the information that the offending
vehicle had a headlight out.29
Pennsylvania State Trooper Raphael Christopher, who was east of Exit 16
(Carlisle) patrolling the Pennsylvania Turnpike3° when the first transmission concerning
Defendant's erratic driving, vehicle type, license number and location was received,
proceeded in a westerly direction in an attempt to intercept the vehicle.3~ The initial
transmission was followed by a second transmission, a few minutes later, indicating that
one headlight was out on the vehicle in question and advising as to its continued easterly
progress.
Pennsylvania State Trooper Anthony Wagner, who was at the interchange for Exit
16 (Carlisle) of the Turnpike and was also on routine patrol when the first transmission
was provided,33 proceeded off-Turnpike two miles west to an access gate.34 His plan was
to re-enter the Turnpike behind the vehicle in question and observe its operation while
trailing it.35 However, as Trooper Wagner was closing the access gate, Defendant's
automobile went by him.36 He described the event as follows:
Q So when you saw [Defendant's vehicle] you weren't in
your car?
A No, I was standing outside.
28 N.T. 8.
29 N.T. 19, 27-28. It is unclear from the record whether this was a second report by Mr.
Bottenfield or a report from a second driver on the Turnpike.
3o Trooper Christopher was located near the Gettysburg interchange of the Turnpike when
the first transmission concerning Defendant was received. N.T. 14-15.
3~ N.T. 15-16.
32 N.T. 15-16.
33 N.T. 24-25.
34 See N.T. 16, 27.
35 N.T. 27.
36 N.T. 28.
4
Q
received?
A
Q Okay. And what details of the vehicle did you see when
you saw it?
A I saw the burned out headlight first. Then the vehicle came
past me. I could see the color, and that it was, in fact, a Ford Taurus.
And after it had passed, I did catch the last four numbers of the license
plate.
And what were they?
They were 6039.
And did the car you saw match the description you had
Yes, it did.37
Trooper Wagner radioed the sighting to Trooper Christopher.3a Trooper Wagner
then commenced pursuit of Defendant's vehicle.39
Trooper Christopher positioned his vehicle at the beginning of the eastbound exit
ramp for Exit 16 (Carlisle),4° facing the eastbound traffic.41 Defendant, as it happened,
chose to exit the Turnpike at that point and drove past Trooper Christopher's car.42
Trooper Christopher turned his car around, activated his lights and pursued Defendant.43
Defendant's Ford Taurus, with one headlight out, bearing Pennsylvania license
plate number DVN6039, was stopped by Trooper Christopher within fifteen seconds
thereafter,44 prior to reaching the toll booths.45 The time of the stop was shortly before
37 N.T. 29. The court found the testimony of both troopers entirely credible.
38 N.T. 29.
39 N.T. 28-29.
4o The Exit 15 interchange is situated in Middlesex Township, Cumberland County,
Pennsylvania. N.T. 30.
41 N.T. 16.
42 N.T. 16-17.
43 N.T. 20-21.
44 N.T. 20.
45 N.T. 16-17.
5
9:30 p.m.,46 less than fifteen minutes after Mr. Bottenfield's initial observation of
Defendant's erratic and unsafe driving. Trooper Wagner, who had been able to see the
initiation of the stop, arrived on the scene almost immediately thereafter.47
Trooper Christopher advised Defendant, who was alone in the car, that he had
been stopped because of a report that he had been "all over the roadway.''48 Defendant
insisted that there was nothing wrong with him.49 Preparatory to verifying this claim,5°
the trooper asked Defendant whether he had any weapons on him and asked him to step
out of the vehicle.5~
Defendant said, "No," with respect to weapons, and accompanied Trooper
Christopher to the rear of Defendant's vehicle, where he was patted down for the
trooper's safety.52 In the meantime, Trooper Wagner, standing at the passenger's door of
Defendant's car, observed with a flashlight, in plain view, the chrome barrel of a gun
protruding from under the driver's seat.53
At this point, Defendant was not restrained and had direct access to the gun a few
feet away.54 Trooper Wagner said, "Gun!''55 Trooper Christopher immediately put
Defendant on the ground and placed handcuffs on him.56 With Defendant's access to the
46 N.T. 17.
47 N.T. 29.
48 N.T. 21.
49 N.T. 17.
5o N.T. 22.
5~ N.T. 17.
52 N.T. 17-18. As the trooper pointed out,
53 N.T. 31.
54 N.T. 31-32.
55 N.T. 31.
56 N.T. 17-18, 36.
"[p]eople tell us a lot of things." N.T. 22.
6
gun (which was leadeds7) thus limited, Trooper Wagner asked him whether he had a
permit for the weapon,sa Defendant replied that he did net.s9
Defendant was then placed under arrest and transported to the State Police
Barracks in Newville, Cumberland County, Pennsylvania.® At the barracks, within an
hour of the stop, Defendant was interviewed by Trooper Wagner.6~ Prior to the interview,
Defendant was given his Miranda warnings, acknowledged his understanding of them,
and agreed to answer questions about the incident.62 In the interview, he claimed that he
had purchased the gun in Ohio for $30.63
At the conclusion of the hearing, Defendant's motion to suppress was denied.64 A
bench trial was conducted before the writer of this opinion on April 1, 2002, at which
time Defendant was found not guilty of driving without a license and guilty of possession
of a firearm without a license.6s
Sentence was imposed on May 28, 2002.66 Defendant's notice of appeal from the
judgment of sentence was filed on June 25, 2002.67
DISCUSSION
Statement of Law
Burden of proof on suppression motion. At a suppression hearing, when the
admission of evidence is challenged by a defendant on the ground that it was
s7 N.T. 32.
sa N.T. 32, 36.
59 N.T. 36.
60 N.T. 32.
61 N.T. 32.
62 N.T. 33, 37-38.
63 N.T. 33.
64 Order of Ct., Jan. 9, 2002.
65 Order of Ct., Apr. 1,2001.
66 Order of Ct., May 28, 2002.
67 Def.'s Notice of Appeal, filed June 25, 2002.
7
unconstitutionally obtained, the burden of proof is upon the Commonwealth to show by a
preponderance of the evidence that the evidence was not obtained in violation of the
defendant's rights. See Pa. R. Crim. P. 58i(H); Commonwealth v. Stoops, 723 A.2d 184,
186 (Pa. Super. Ct. 1998).
Traffic stops. Under the Fourth Amendment to the Federal Constitution, "[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Under
Article I, Section 8, of the Pennsylvania Constitution, "[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches and seizures."
Pa. Const. art. I, 9 8.
With respect to the application of these provisions to the stop of a motor vehicle
for a violation of the Vehicle Code, the Pennsylvania Supreme Court has stated:
If the alleged basis of a vehicular stop is to permit a determination whether
there has been compliance with the Motor Vehicle Code of this
Commonwealth, it is [incumbent] upon the officer to articulate specific
facts possessed by him, at the time of the questioned stop, which would
provide probable cause to believe that the vehicle or the driver was in
violation of some provision of the Code.
Commonwealth v. Whitmyer, 542 Pa. 545, 550, 668 A.2d 1113, 1116 (1995) (quoting
Commonwealth v. Murray, 460 Pa. 53, 58-59, 331 A.2d 414, 416-17 (1975)), quoted in
Commonwealth v. G/eason, 567 Pa. iii, 122, 785 A.2d 983, 989 (2001); see a/so 75 Pa.
C.S. 9 6308(b) (vesting police officers with authority to conduct a stop of a vehicle when
they have "articulable and reasonable grounds to suspect a violation" of the Vehicle
Code).
Violations of the Vehicle Code include driving with a defective headlight, careless
driving, reckless driving, and driving under the influence. See 75 Pa. C.S. 99 3714,
373i(a), 3736, 4303(a) (Supp. 2002). Careless driving involves driving "in careless
disregard for the safety of other persons or property." 75 Pa. C.S. 9 4303(a). Reckless
driving involves driving "in willful or wanton disregard for the safety of other persons or
property." 75 Pa. C.S. 9 3736. Indicia of driving under the influence include erratic and
unsafe driving. Gleason, 567 Pa. at 121-22, 785 A.2d at 989; Commonwealth v.
Battaglia, 529 MDA 2001, 2002 WL 1364713, at *3-4 (Pa. Super. Ct. June 25, 2002)
(holding that erratic driving in conjunction with evidence of Vehicle Code violation may
provide grounds for vehicle stop to investigate possible driving-under-the-influence
violation); see Commonwealth v. Slonaker, 795 A.2d 397, 402 (Pa. Super. Ct. 2002).
In developing the level of suspicion necessary to justify a vehicle stop, police are
not limited to consideration of their personal observations but may rely upon reports by
third parties. Commonwealth v. Korenkiewicz, 743 A.2d 958, 963 (Pa. Super. Ct. 1999)
(en banc); see also Commonwealth v. Cullen, 340 Pa. Super. 233,248-49, 489 A.2d 929,
937 (1985). "[P]ersonal knowledge of the facts which support probable cause" is not
necessary to justify a vehicle stop when officers are in possession of "reasonably
trustworthy information" from a known informant that has been corroborated by police
observation. Id; see also Korenkiewicz, 743 A.2d at 963. Primary considerations relevant
to a determination of whether a known informant's "tip" has been sufficiently
corroborated to justify a stop include the specificity of the description of the suspicious
behavior and the period that elapsed from the time of the informant's report until the
police observation. Id., cited in Commonwealth v. Schwartz, 787 A.2d 1021, 1025-26 (Pa.
Super. Ct. 2001); see also Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417,
110 L. Ed. 2d 301,310 (1990).
With respect to the constitutional limitations on an officer's actions following a
properly executed stop, "the Fourth Amendment has consistently been held to permit the
police to require the driver of a lawfully stopped vehicle to exit the vehicle without any
additional probable cause or reasonable suspicion." Commonwealth v. Rodriguez, 695
A.2d 864, 868 (Pa. Super. Ct. 1997) (emphasis omitted). This principle is based on "the
need to protect police officers from the serious and substantial dangers inherent in traffic
stops and the relatively minor intrusion upon the privacy rights of the driver under
circumstances where the vehicle has been lawfully stopped." Id.
Plain-view doctrine. The constitutional protections against unreasonable searches
and seizures have been previously cited. Under the plain-view doctrine, in order for a
9
warrantless seizure of an item to be constitutionally sanctioned: "(1) the officer must
view the object from a lawful vantage point, (2) the object must be in plain view, and (3)
the incriminating nature of the object must be immediately apparent to the officer."
Common,yea/th v. Co/on, 777 A.2d 1097, 1103 (Pa. Super. Ct. 2001). Stated otherwise,
the plain-view doctrine permits the warrantless seizure of evidence in a law enforcement
officer's plain view when the officer seizing the evidence did not violate constitutional
requirements in arriving at the place from which the evidence could be plainly viewed,
the incriminating nature of the evidence was immediately apparent, and the officer had a
lawful right of access to the object itself. United States v. Crespo, 868 F. Supp. 79, 83
(M.D. Pa. 1994). Further, "[t]he fact that [an] officer require[s] illumination from a
flashlight to see into the darkened interior of [a] vehicle [does] not prevent [a] gun from
being in plain view or render the [officer's] conduct unreasonable." Common,yea/th v.
Merkt, 411 Pa. Super. 127, 131, 600 A.2d 1297, 1299 (1992) (quoting Common,yea/th v.
Bentley, 276 Pa. Super. 41, 48, 419 A.2d 85, 88 (1980)); see a/so Texas v. Brown, 460
U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512-13 (1983).
When a weapon is discovered in plain view in a vehicle during the course of a
traffic stop, police officers are not required to disregard the risk to their own safety that
would arise from leaving the weapon unsecured on the theory that its possession by the
occupant might be lawful. See Common,yea/th v. Rosa, 734 A.2d 412, 414-20 (Pa. Super.
Ct. 1999). Rather, in circumstances in which officers reasonably believe that a threat to
their own safety or the safety of others exists, police are constitutionally justified in
detaining an individual following a traffic stop in order to investigate further the
possibility of criminal conduct and the potential risk to those on the scene. Id; see a/so
Common,yea/th v. Haupt, 389 Pa. Super. 614, 621-26, 567 A.2d 1074, 1078-80 (1989).
Miranda ~varnings. The Fifth Amendment to the Federal Constitution provides
that "[n]o person.., shall be compelled in any criminal case to be a witness against
himself." U.S. Const. amend. V; see a/so Pa. Const. art. I, § 9 ("In all criminal
prosecutions the accused.., cannot be compelled to give evidence against himself.");
Common,yea/th v. Turner, 499 Pa. 579, 583-84, 454 A.2d 537, 540 (1982) (stating that, in
10
general, Miranda requirements under Pennsylvania Constitution "parallel" those under
Federal Constitution). The United States Supreme Court has held that "the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of a defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S.
436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1969).
These procedural safeguards, which have come to be know as Miranda warnings,
apply only in situations in which a person has been placed under custodial arrest, or the
functional equivalent thereof. Commonrvea/th v. Thompson, 778 A.2d 1215, 1220-21 &
n.4 (Pa. Super. Ct. 2001) ("There [exist] three types of police/citizen interaction: (1) mere
encounter, (2) investigative detention, and (3) custodial detention."), appeal denied, 567
Pa. 725, 786 A.2d 988 (2001). "[P]olice detentions only become 'custodial' when under
the totality of the circumstances the conditions and/or duration of the detention become
so coercive as to constitute the functional equivalent of formal arrest." Commonrvea/th v.
Ellis, 379 Pa. Super. 337, 356, 549 A.2d 1323, 1332 (1988), quoted in Commonrvea/th v.
Turner, 772 A.2d 970, 973 (Pa. Super. Ct. 2001).68
"There is no per se rule that.., handcuffing [people] constitutes an arrest." Baker
v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995); see United States v. Prince, 157
F. Supp. 2d 316, 324-26 (D. Del. 2001)(holding that defendant handcuffed and placed in
police car was, under circumstances of case, not under arrest for purposes of right to
68 It should be noted that the issue of whether statements made to police by a suspect are
inadmissible because of a failure to administer the Miranda warnings involves two
questions: (1) whether the suspect was in "custody," which involves consideration of the
restraints of the suspect's freedom of movement, and (2) whether the suspect was
subjected to "interrogation," which involves consideration of the nature of questioning by
police. Turner, 772 A.2d at 973 ("There are two separate requirements, custody and
interrogation, that have to be found in order for Miranda to apply."). In this case, the
primary focus is on the former, and, thus, the nature of the response that the questioning
was intended to produce will not be subjected to detailed examination. But see infra note
70 (discussing differences between police "interrogation" of a suspect and officer's
request for a license from a person engaging in an activity regulated by state law).
11
Miranda warnings). In circumstances in which police making a vehicle stop have a
legitimate fear for their own safety, officers may remove occupants from the vehicle,
force them to the ground, and handcuff them while conducting further investigation
without transforming the interaction from a detention into a custodial arrest. Baker, 50
F.3d at 1193 (citing cases); United States v. McGrath, 89 F. Supp. 2d 569, 577-78 (E.D.
Pa. 2000) (finding that police acted within bounds of investigatory stop in ordering
suspect out of her vehicle, forcing her to the ground, and handcuffing her under
circumstances in which suspect may have been armed); United States v. Padilla, Crim.
No. 96-606-03, 1997 WL 158396, at *7 & n.2, '9-10 & n.5 (E.D. Pa. Mar. 31, 1997)
(mem.) (quoting with approval United States v. Melendez-Garcia, 28 F.3d 1046, 1052
(10th Cir. 1994); United States v. Perdue, 8 F.3d 1455, 1463-64 (10th Cir. 1993)) ("[T]he
use of firearms, handcuffs and other forceful techniques does not necessarily transform
an investigatory detention into a full custodial arrest when 'the circumstances reasonably
warrant such measures.'"); e.g., Perdue, 8 F.3d at 1463-64 (citing cases and finding that
police acted within bounds of investigatory stop in ordering suspect out of his vehicle,
forcing him to the ground, and handcuffing him under circumstances in which dangerous
weapons may have been present in vehicle); United States v. Merkley, 988 F.2d 1062,
1064 (10th Cir. 1993) (same); United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983)
(same); cf. United States v. Edrvards, 53 F.3d 616, 619-20 (3d Cir. 1995) (holding that
officers' actions in blocking vehicle and drawing weapons did not transform stop into
custodial detention and stating that issue was not whether suspect was free to leave but
whether police actions were reasonable); Commonwealth v. Grvynn, 555 Pa. 86, 99-100,
723 A.2d 143, 149 (1998) (holding that handcuffing of suspect during investigatory
detention when officers reasonably believed that suspect might flee did not transform
stop into custodial detention but rather "constituted permissible preservation of the status
quo while the officer confirmed or dissipated his suspicions"). Only if the actions were
disproportionate when compared to the potential danger posed to officers, or if the period
of detention was excessive, does such a detention constitute a "de facto arrest." E.g.,
McGrath, 89 F. Supp. 2d at 577-78.
12
In Commonwealth v. Haupt, 389 Pa. Super. 614, 567 A.2d 1074 (1989), a
defendant motorist was stopped for a violation of the Vehicle Code and exited the vehicle
pursuant to an order of the officer who stopped him. When the officer asked the
defendant whether he had a permit for a revolver that the officer observed in plain view
in the vehicle, the defendant replied that he did not. In reversing the trial court's
suppression of the defendant's inculpatory statement in the absence of Miranda warnings,
the Pennsylvania Superior Court held that the statement was not the result of custodial
interrogation. Id. at 621-26, 567 A.2d at 1078-80.69
Application of Law to Facts
In the present case, a number of factors militated in favor of the Commonwealth's
position that the stop of Defendant's vehicle was supported by specific and articulable
grounds to believe that a violation of the Vehicle Code had occurred in the course of
Defendant's operation of his vehicle--in the form of careless driving, reckless driving,
driving under the influence, and/or driving with a defective headlight. These factors
included the detailed report from an identified informant of erratic and unsafe driving,
accompanied by a precise description of the vehicle in question and its license plate
number; the report of a defective headlight with partial corroboration of this information
by state police shortly thereafter in the form of their observation of a car matching the
description of that reported at a location commensurate with the direction of travel
reported; and their direct observation of the defective headlight. For this reason, it was
the court's view that the stop of Defendant's vehicle was lawful.
The Commonwealth's position that the discovery and seizure of the gun in
Defendant's car was justified under the plain view doctrine was similarly supported by
the evidence. In this regard, the legality of the presence of the state police at the vantage
point from which the weapon was observed was supported by (a) the lawfulness of the
stop of Defendant's vehicle discussed above and the principle that a motorist in a valid
69 See also infra note 70 (discussing differences between police "interrogation" of a
suspect and officer's request for a license from a person engaging in an activity regulated
by state law).
13
traffic stop may be removed from the vehicle for safety purposes, (b) the visibility of the
item from the vantage point, albeit with the aid of a flashlight, and (c) the fact that the
item was a firearm proximate to Defendant's location. For this reason, the court
concluded that the seizure of the firearm was lawful.
Finally, the evidence supported the proposition that the absence of Miranda
warnings prior to Defendant's statement that he did not have a permit for the gun did not
render either that statement or a post-Miranda warnings statement that he had purchased
the gun in Ohio inadmissible. With respect to this issue, the legality of the stop, seizure of
the weapon, and detention of Defendant for investigative purposes have been previously
discussed. The restraint upon Defendant (a) upon discovery of a loaded firearm in the
vehicle after an avowal on his part that he had no weapon and (b) in view of his
proximity to the weapon at the moment of its discovery represented, in the court's view, a
reasonable safety exercise rather than an evolution of the detention into the functional
equivalent of a formal arrest.7° Accordingly, the initial statement of Defendant did not
occur during the course of custodial interrogation, its admission was not precluded by the
7o Also, an inquiry by a law enforcement officer as to whether a person with whom he or
she interacts has a permit for an activity being conducted and requiring a license (e.g.,
driving an automobile, carrying a firearm in a vehicle, etc.) is, arguably, of a somewhat
special nature, involving as it does an activity engaged in by permit rather than
unconditional right and of public record. As the Supreme Court of indiana has noted:
in situations where licenses or permits are required, such as a driver's
license, a hunting and fishing license, or as in this case a permit to carry a
pistol, any peace officer observing a person engaged in the activity for
which a license or permit is required, may, when called upon to investigate
such activity, ask the person in question if he has the required license or
permit without first giving him the so-called 'Miranda warnings.' Such an
inquiry by the officer is proper within the category of reasonable
investigation. We hold that it is not the type of custodial interrogation
which is prohibited without proper warning to the accused.
Johnson v. State, 269 N.E.2d 879, 881-82 (ind. 1971); see also Haupt, 389 Pa. Super.
621-26, 567 A.2d at 1078-80 (holding that police request for license did not constitute a
custodial interrogation).
14
decision in Miranda v. ~4rizona, and Defendant's post-Miranda warnings statement was
not rendered inadmissible by a taint of a prior illegality.
For the foregoing reasons, Defendant's motion to suppress was denied.
BY THE COURT,
Michael W. Mervine, Esq.
Assistant District Attorney
Aria M. Waller, Esq.
Assistant Public Defender
J. Wesley Oler, Jr., J
15