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HomeMy WebLinkAboutCP-21-CR-0000046-2016 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0046-2016 v. : CHARGES: (1) RESISTING ARREST OR : OTHER LAW : ENFORCEMENT : (2) OBEDIENCE TO TRAFFIC : CONTROL DEVICES : (3) OPERATION OF VEHICLE : WITHOUT OFFICIAL : CERTIFICATE OF : INSPECTION : (4) PROHIBITION ON : EXPENDITURES FOR : EMISSION INSPECTION : PROGRAM : ABU BAKARR NABIE : AFFIANT: TPR. JOSEPH MANNING : PSP – CARLISLE OTN: T725625-5 : IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION OPINION and ORDER OF COURT BREWBAKER, J., March ___, 2017 Before the Court is Defendant Abu Bakarr Nabie’s Omnibus Pretrial Motion, filed February 6, 2017. For the reasons that follow, the motion will be granted. Facts The facts of the present case were previously set forth in this Court’s August 26, 2016 opinion, and repeated in our January 6, 2017 opinion, and may be summarized as follows. On November 13, 2015, at approximately 1:00 p.m., Pennsylvania State Police Officers Joseph 1 Manning and Trooper Lane (née Black) came across Abu Bakarr Nabie (hereinafter “Defendant”) when he was standing next to his vehicle in the median of Interstate 81 near mile marker 52.2. Defendant’s vehicle was in a small paved area between the northbound and southbound lanes of Interstate 81, which is a restricted crossover area for emergency vehicles. Upon approach, the Troopers saw Defendant getting ready to pour something into his gas tank from a clear plastic bottle; Defendant affirmed that it was gasoline. Trooper Manning noticed that, from the outside, the inspection and registration stickers on Defendant’s vehicle appeared to be “not right,” as they were crumbled and not flush on the windshield. Before talking to Defendant, Trooper Manning walked around Defendant’s open driver’s door and stuck his head inside the vehicle in an effort to see the back of the stickers, which he then noticed appeared to be blank. The Troopers requested Defendant’s driver’s license, registration, and proof of insurance, to which Defendant asked why and proceeded to indicate that he did not need to provide such information to them. Subsequently, Trooper Manning attempted to grab Defendant to prevent him from entering his vehicle, and Defendant resisted. It took four officers and significant pushing, pulling and struggling for Defendant to be taken into custody. Defendant testified that his car had run out of gas, lost power steering, and the median was the only location where he could safely pull over. The procedural history of this case is rather convoluted, beginning with the termination of defense counsel’s employment with the Cumberland County Public Defender’s Office approximately three weeks prior to Defendant’s bench trial. After Defendant’s original counsel was fired, Attorney Toomey was appointed in her place and represented Defendant at his trial. 1 The Criminal Information incorrectly spells Defendant’s last name as Nabbie. Defendant’s last name is Nabie. An order correcting the caption was entered on September 19, 2016. 2 Following the trial on August 26, 2016, Defendant was found guilty of Counts I, II, III, and IV, 2 and not guilty of Count V. In the opinion, this Court noted that “\[w\]hile there were significant issues presented and argued regarding the Troopers looking inside the vehicle and actually physically touching Defendant, the proper forum for addressing those issues would be a suppression motion and not during a trial.” Trial Ct. Op., August 26, 2016, at 3 ¶ 3. Defendant was directed to appear for sentencing on October 18, 2016. On September 22, 2016, Attorney Toomey, recognizing ineffective counsel claims against his former colleague, filed a motion to withdraw, which this Court granted on October 4, 2016. Sentencing was continued until November 7, 2016, at which time Defendant was sentenced to unsupervised probation for six months. Defendant’s new counsel, Attorney Wolf, then filed a Post Sentence Motion alleging prior counsel’s ineffectiveness for failure to file a suppression motion. A hearing on the post sentence motion occurred on December 20, 2016, after which this Court granted the motion and reinstated Defendant’s right to file pretrial motions. Defendant filed the instant Omnibus Pretrial Motion on February 3, 2017, requesting a decision on the basis of the prior testimony from the nonjury trial; the Commonwealth’s Answer to Defendant’s Motion was filed on February 28, 2017. On March 10, 2017, this Court issued a Rule to Show Cause as to why the Defendant’s motion should not be decided on the record already developed; counsel for both parties agreed that another hearing was unnecessary. Analysis It is well-established law that an interaction between a police officer and a citizen can be classified under one of three categories measuring the degree of intrusion: (1) a mere encounter, 2 Defendant was charged at Count I with resisting arrest, at Count II with obedience to traffic control devices, at Count III with operation of vehicle without official certificate of inspection, at Count IV with prohibition on expenditures for emission inspection program, and at Count V with violations of use of certificate of inspection. 3 (2) an investigative detention, and (3) a custodial detention. A “mere encounter” (or request for information) does not require any level of suspicion but carries no official compulsion to stop or to respond. An “investigative detention” must be supported by reasonable suspicion because it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, a “custodial detention” (or arrest) must be supported by probable cause. Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008) (citations omitted). To initiate a traffic stop, a police officer must possess at least reasonable suspicion that a violation of the Motor Vehicle Code has occurred. 75 Pa. C.S. § 6308. The reasonable suspicion standard is less stringent than probable cause, and depends upon the information possessed by the officer at the time of the stop. Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). Specifically, the officer must be able to point to “specific and articulable facts” leading him to believe that criminal activity is afoot. Id. An actual violation need not be established if the officer has a reasonable basis for the stop. Commonwealth v. Benton, 655 A.2d 1030, 1033 (Pa. Super. 1995). We begin by noting that while Defendant’s vehicle was already physically stopped, the Troopers could not initiate a traffic stop absent reasonable suspicion. The interaction thus began as a mere encounter. Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000) (“We are unaware of any search and seizure law that treats a police officer approaching a stopped vehicle as a ‘traffic stop.’”). Trooper Manning testified that the reasons for his request for Defendant’s license and registration were that the inspection sticker was not valid and that Defendant’s vehicle was stopped in the emergency crossover. Notes of Testimony, In Re: Transcript of Proceedings Nonjury Trial, August 26, 2016, 31, 45 (hereinafter “N.T. at __”). Consequently, 4 we reject the Commonwealth’s assertion that Defendant’s use of an improper container to pour gasoline into his vehicle would have justified a stop, as the Trooper did not consider that a justification for why he approached Defendant. Moreover, contrary to the Commonwealth’s argument, Defendant was not charged with failure to provide identification to the Troopers, and the failure to provide documentation is an issue only if there was a lawful stop. Commonwealth v. Lyles, 97 A.3d 298, 303 (Pa. Supreme 2014) (noting that police may request identification during a mere encounter, but individual retains right to decline). Therefore the proper focus for the analysis is on the reasons that Trooper Manning presented for having approached Defendant: the location of the vehicle in the emergency crossover of the highway and the invalid inspection and emissions stickers. Regarding the presence of Defendant’s vehicle in the emergency crossover, Trooper Manning testified that the area in which Defendant had stopped was an emergency crossover for emergency and authorized vehicles only and not for regular vehicular use. N.T. 5. However, according to Pennsylvania law, while stopping or standing in a highway crossover is a violation of 75 Pa. C.S. § 3353(a)(1)(ix), an exception exists where it is necessary “to protect the safety of any person or vehicle.” 75 Pa. C.S. §3353(a). Moreover, under section 3351(b) of the Motor Vehicle Code, an exception exists for a vehicle that is “disabled in such a manner and to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle in that position.” 75 Pa. C.S. § 3351(b). Defendant testified that his car ran out of gas and the emergency crossover was the only place for him to stop safely. This testimony was supported by the video recording and the testimony of the Troopers that when they found Defendant, he was pouring liquid into his gas tank. If Defendant had stopped in the middle of the highway, or attempted to pull over on the narrow right hand shoulder, it is likely he would have put himself 5 and others in danger. Therefore, this Court holds that Defendant was lawfully in the emergency crossover, the safest place for him to be, and that his presence was therefore not sufficient to provide reasonable suspicion that criminal activity was afoot. Next, we examine whether the Troopers possessed reasonable suspicion that Defendant’s vehicle’s inspection stickers were invalid. Trooper Manning testified that from the outside the stickers appeared not to be flush to the windshield, “as if they had been removed prior and placed on a different vehicle or somehow been tampered with.” N.T. at 6. He further stated that he observed tape that was holding the stickers to the windshield. N.T. 9-10. On cross-examination, Trooper Manning admitted that he has seen valid stickers that have strange wear, and that the front of the sticker alone was not enough to determine that the sticker were invalid. N.T. 27. It was not until he put his head inside Defendant’s vehicle and saw that the back of the stickers were blank that it became apparent that the stickers were invalid. An examination of all of the evidence, including this Court’s review of the video recording of the entire interaction, leads to the conclusion that Trooper Manning lacked reasonable suspicion to conduct a traffic stop prior to sticking his head inside the vehicle, and therefore the search of the vehicle was unconstitutional. The outside of the stickers alone was not sufficient to indicate that the stickers were invalid, and therefore Trooper Manning’s act of putting his head inside Defendant’s vehicle was an unconstitutional search, as it invaded Defendant’s reasonable expectation of privacy inside the interior of his vehicle. Consequently, because the Troopers lacked reasonable suspicion to detain Defendant, the interaction between the Troopers and Defendant constituted a mere encounter, and Defendant was therefore not required to provide any identifying information to the Troopers. 6 Having concluded that Trooper Manning’s search of Defendant’s vehicle was unconstitutional, the law requires that all evidence obtained as a result of that search be suppressed as fruit of the poisonous tree. Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997) (citing Wong Sun v. United States, 371 U.S. 471 (1963) (holding that statements made as part of an illegal arrest should be suppressed as “fruit of the poisonous tree”)). The Court recognizes that the Troopers were doing their best to serve a citizen that they believed was in trouble when they stopped to talk to Defendant, and that the situation escalated quickly and unfortunately. Although the Troopers were acting in good faith when they approached Defendant, Pennsylvania jurisprudence does not recognize a “good faith” exception to search 3 and seizure requirements. Because Defendant was not lawfully arrested, the resisting arrest charge will be dismissed as the evidence is insufficient as a matter of law to prove that Defendant resisted a lawful arrest. For the above stated reasons, Defendant’s Omnibus Pretrial Motion will be granted. ORDER st AND NOW, this 31 day of March, 2017, upon consideration ofDefendant’s Omnibus GRANTED Pretrial Motion, the Motion is hereby . All evidence obtained by the police as a result of the search of Defendant’s vehicle will be suppressed, and Count I, Resisting Arrest, is hereby dismissed for legal insufficiency. BY THE COURT, __________________________ Jessica E. Brewbaker, J. 3 See, e.g., Commonwealth v. Edmunds,586 A.2d 887, 899 (Pa. 1991) (“\[c\]itizens in this Commonwealth possess such rights, even where a police officer in "good faith" carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a "good faith" exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.”). 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0046-2016 v. : CHARGES: (1) RESISTING ARREST OR : OTHER LAW : ENFORCEMENT : (2) OBEDIENCE TO TRAFFIC : CONTROL DEVICES : (3) OPERATION OF VEHICLE : WITHOUT OFFICIAL : CERTIFICATE OF : INSPECTION : (4) PROHIBITION ON : EXPENDITURES FOR : EMISSION INSPECTION : PROGRAM : (5) VIOLATIONS OF USE OF : CERTIFICATE OF : INSPECTION : ABU BAKARR NABBIE : AFFIANT: TPR. JOSEPH MANNING : PSP – CARLISLE IN RE: DEFENDANT’S POST SENTENCE MOTIONS ORDER OF COURT st AND NOW, this 31 day of March, 2017, upon consideration ofDefendant’s Omnibus GRANTED Pretrial Motion, the Motion is hereby . All evidence obtained by the police as a result of the search of Defendant’s vehicle will be suppressed, and Count I, Resisting Arrest, is hereby dismissed for legal insufficiency. BY THE COURT, __________________________ Jessica E. Brewbaker, J. Daniel Sodus, Esquire Sr. Assistant District Attorney Nathan Wolf, Esquire Court-appointed for the Defendant 8