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HomeMy WebLinkAbout01-2430 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COLIN PATRICK FLANNERY 01-2430 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., April 3, 2002:-- Defendant, Colin Patrick Flannery, is charged with a count of summary consumption of a liquor or malt or brewed beverage while under the age of twenty-one.1 He filed a motion to suppress evidence upon which a hearing was conducted on March 19, 2002. FACTS In the early morning hours of August 5, 2001, Officer Douglas Hockenberry, of the Camp Hill Borough Police, arrested an eighteen-year-old in the Borough for driving under the influence. That person was taken to a booking center. Officer Lane Pryor, of the Camp Hill police, was at the booking center where he observed that the person was extremely intoxicated. Officer Hockenberry heard the person say that he had been at a drinking party for the birthday of a girl, who he named, at 2017 Harvard Avenue in the Borough. 1 18 Pa. C.S. § 6308(a). 01-2430 CRIMINAL TERM Officer Pryor left the booking center, and with Sergeant Thomas Olson, of the Camp Hill Police, drove to 2017 Harvard Avenue. The officers arrived at 5:15 a.m. The house at 2017 Harvard Avenue faces the street. There is an attached garage with a room above. The officers, who were in uniform, walked toward the front door of the house by going up a driveway toward a walkway running to the front door. When they were still in the driveway they saw three females at a window in the room above the garage. The officers were in uniform, and Officer Pryor announced that they were the police, and asked the females to "please come to the door." He heard one of the females say, "it's the cops." One ducked under the window and two moved away from the window. The officers went to the front door and knocked. They heard a disturbance in the rear of the house. Sergeant Olson remained at the door, and Officer Pryor walked around the house to where he could see people running out of the backdoor, and through the backyard. The officer yelled, "Police - stop." The people did not stop, but jumped a back fence into another yard. Officer Pryor chased them. He caught up with defendant about two and a half blocks away, where he found him hiding behind a bush. Officer Pryor handcuffed defendant, and detected an odor of beer on his breath. He asked defendant how much he had to drink. Defendant said "a few beers." The officer took defendant to his patrol car. When asked, defendant told Officer Pryor that he was born on July 27, 1983, which means that he was eighteen. Defendant consented to take a preliminary breath test, which registered .04 percent. Officer Pryor -2- 01-2430 CRIMINAL TERM then issued him the citation for unlawful consumption of liquor or malt or brewed beverage by a person under the age of twenty-one. THE MOTION TO SUPPRESS Defendant maintains that all evidence gained by Officer Hockenberry must be suppressed as a result of the officer unlawfully pursuing and detaining him. Alternatively, he maintains that when he was handcuffed, he was illegally arrested and placed into custody because there was no probable cause to believe that he committed an offense. Therefore, the evidence obtained by the officer as to the odor of alcohol on his breath, and the statements he made of having drunk "a few beers" and being 18, must be suppressed. Additionally, he maintains that his statements must be suppressed because he was not warned of his Miranda rights,2 nor did he waive such rights before making the statements. CASE LAW In In re: D.M., 781 A.2d 1161 (Pa. 2001), the defendant was adjudicated a delinquent. On appeal, the Supreme Court of Pennsylvania addressed the issue of "whether the police demonstrated the requisite cause to stop appellant, based on an anonymous tip, where appellant fled when the officers approached him." The facts were as follows: On June 24, 1996, at approximately 6:00 p.m., Officer Chris Frazier received a radio call regarding a man with a gun at 28th and Cecil B. Moore Avenues in Philadelphia. The officer was only one block from the 2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). -3- 01-2430 CRIMINAL TERM location at the time of the call. The radio call included a description of the "man with a gun" as a black male, wearing a white t-shirt, blue jeans and white sneakers. Upon arriving at the scene, the officer saw appellant, D.M., who matched the description given by the radio call. Officer Frazier exited his vehicle and told appellant to come over. Appellant ran away from the officer. Police back up approached the scene and appellant was stopped between the two cars. Officer Frazier asked appellant to put his hands on the hood of the car in front of him and proceeded to pat appellant down for the officer's own protection. Officer Frazier felt a hard object resembling a handgun in appellant's crotch area. A .32 caliber handgun fell out of appellant's right pants leg. At that point, Officer Frazier secured the gun and arrested appellant. (Footnote omitted.) The Supreme Court stated that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has reasonable, articulable suspicion that criminal activity is afoot. The Court stated: In order to determine whether the police had a reasonable suspicion, the totality of the circumstances--the whole picture--must be considered. United States v. Cortez, 449 U.S. 411,417, 101 S.Ct. 690, 66 L.Ed.2d 261 (1981). "Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. at 417-18, 101 S.Ct. 690. In the instant case, the police received an anonymous telephone call reporting that appellant was on a specific corner with a gun. The caller also described what appellant was wearing. This information standing alone was insufficient to support a finding of reasonable suspicion. [Commonwealth v. Jackson, 548 Pa. 484 (1997)]. However, as the police officer approached appellant, he turned and fled the scene. As the Court indicated in [Illinois v. Ward/ow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)], flight is the consummate act of evasion. Thus, appellant's flight coupled with the anonymous caller's information -4- 01-2430 CRIMINAL TERM was sufficient to arouse the officer's suspicion that criminal activity was afoot at the time he stopped appellant, Appellant argues that he was "seized" at the time the police initially approached him and that the initial detention must be justified by reasonable suspicion. According to appellant, flight precipitated by unjustified police conduct cannot be used in the determination of reasonable suspicion because the flight occurs only after the police have initiated an unjustified seizure. Commonweolth v. Motes, 543 Pa. 449, 672 A.2d 769 (1996). Appellant's interpretation of Motes is incorrect. In Mote& we explained that the pursuit of an appellant by police officers amounted to a seizure. Mote& 672 A.2d at 771 (emphasis added).~ Thus, the officer must demonstrate either probable cause to make the seizure or reasonable suspicion to stop and frisk. However, Motes did not address whether the police needed some level of requisite cause at the time they initially approached the appellant. Rather, that question is governed by the type of encounter that the police initiated when they approached the appellant. Traditionally, this Court has recognized three categories of encounters between citizens and the police. These categories include (1) a mere encounter, (2) an investigative detention, and (3) custodial detentions. Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372, 375 (2000). Further, the police may approach anyone in a public place to talk to him, without any level of suspicion, but the citizen "has a right to ignore the police and go about his business." Ward/ow, 528 U.S. at 125, 120 S.Ct. 673 (citing Florida v. Reyer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); see also Polo ("a 'mere encounter' (or request for information), which need not be supported by any level of suspicion, but carries no official ~ Furthermore, in Mates, the sole issue before this court was "whether contraband discarded by a person fleeing a police officer are the fruits of an illegal 'seizure' where the officer possessed either 'probable cause' to arrest the individual nor reasonable suspicion to stop the individual and conduct a Terry frisk." Id. at 770. In Mates, the Commonwealth did not raise any challenge to whether there was reasonable suspicion to stop or probable cause to seize the defendants. Therefore, the instant case speaks to an issue that was not contemplated by our decision in Mates, since today, we are specifically addressing whether the police possessed the requisite cause to stop the appellant. -5- 01-2430 CRIMINAL TERM compulsion to stop and respond"); Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1119 (1998). In the instant case, at the time the police initially approached the appellant it was unclear whether the police intended to do anything other than talk to him. Thus, the initial approach did not need to be justified by any level of suspicion. Rather, the appropriate time to consider whether the police had reasonable suspicion is at the time the police actually effectuated the seizure of the appellant and the totality of the circumstances test, by its very definition, requires that the whole picture be considered when determining whether the police possessed the requisite cause to stop appellant. Cortez. Here, the police effectuated the stop following appellant's flight from the scene, thus, flight was clearly relevant in determining whether the police demonstrated reasonable suspicion to justify a Terry stop under the totality of the circumstances. (Footnote omitted.) (Emphasis added.) In Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001), the Superior Court of Pennsylvania stated: The overlying test to determine whether a person is being subjected to a custodial interrogation necessitating Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. The factors that the court considers to determine whether there has been a custodial interrogation include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will; how far and why; whether restraints were used; whether the law enforcement officer showed, threatened, or used force; in the investigative methods employed to confirm or dispel suspicions. In Commonwealth v. White, 358 Pa. Super. 120 (1986), the facts were: On February 28, 1985, at 2:30 in the afternoon, Philadelphia Police Officers Marmien and Derein received a radio assignment to investigate males removing property from 2138 West Columbia Avenue. Within two minutes, the officers arrived at a vacant lot at 22nd and Nicholas -6- 01-2430 CRIMINAL TERM Streets--a position one-half block south and one-half block west of the subject location--where they observed the two defendants walking west and carrying four, 4ft. by 8 ft., formica sheets. The officers pulled their cars to the curb on 22nd Street, exited the vehicles, approached and stopped the males in the middle of 22nd Street. They asked the defendants where they had gotten the sheets, and defendants replied that they were contractors and had bought the sheets in the 22 (twenty-two) hundred block of Columbia Avenue. At that point the officers placed defendants in one of the police cars in the custody of Officer Derein, while Officer Marmien went to investigate the subject premises. Some time later, when Officer Marmien returned to the police vehicles, he encountered a female who identified herself as the property owner, and who identified the formica sheeting as belonging to her. The trial court concluded that defendants were placed under arrest when they were directed to sit in the police car. The Superior Court disagreed, stating: We do not find that the brief detention in the police car transformed an otherwise proper investigative detention into an illegal arrest. The encounter occurred on a public street in the middle of the afternoon. Officer Marmien was understandably reluctant to leave Officer Derein to guard both the appellees without back-up. In order to maintain the status quo, and to ensure the safety of Officer Derein, Officer Marmien asked the appellees to sit in the police car. In determining the reasonableness of the detention "we cannot blind ourselves to the need for law enforcement officers to protect themselves .... "Commonwealth v. Anderson, supra, 481 Pa. at 295, 392 A.2d at 1300. Nor should we indulge in unrealistic second guessing. Commonwealth v. Mayo, supra, 344 Pa. Superior Ct. at 342, 496 A.2d at 826. We note that the appellees were not frisked, handcuffed, or formally placed under arrest. The police did not draw their weapons nor did they transport the appellees from the scene of the encounter, thus Lovette does not control. Under the circumstances, we cannot say that the officers' actions were unreasonable. Therefore, we find no violation of the appellees' state or federal constitutional rights, and no reason to suppress the evidence or statements in question. -7- 01-2430 CRIMINAL TERM In Commonwealth v. Guillespie, 745 A.2d 654 (Pa. Super. 2000), the police made a Terry stop by detaining appellant and placing him in handcuffs until the victim of a robbery could be brought to the scene to make an identification. The Court stated: While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and period of time during which the suspect is not free to go but is subject to the control of the police officer detaining him." (citations omitted). Commonwealth v. Ellis, 379 Pa. Super, 337,549 A.2d 1323, 1331 (1988). Our supreme court has declined to hold that every time an individual is placed in handcuffs that such individual has been arrested. See Commonwealth v. Carter, 537 Pa. 233, 247 n. 2, 643 A.2d 61, 67 n. 2 (1994). However, where a defendant has been placed in handcuffs, physically held by officers with guns drawn and had to accompany the police to City Hall for questioning, the supreme court has found such acts rose to the level of custodial detention. Carter, supra; see Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978). While the act of handcuffing may appear to be custodial in nature in many cases, the facts in the present case do not lend such an interpretation. Rather, the handcuffing of Guillespie and his co-defendant was merely part and parcel of ensuring the safe detaining of the individuals during the lawful Terry stop. The police diligently pursued bringing the robbery victim to the scene for identification purposes. While the use of restraints is a factor to be considered with regard to whether a detention is custodial, in the present case other factors militate against such a finding--e.g., minimal duration of detention, no transport against will, no show or threat or use of force. See [Commonwealth v. Douglas, 372 Pa. Super. 227 (1988)]; see also Ellis, supra. After examining the totality of the circumstances, we cannot find that the officer's detention of Guillespie and the fact that he was placed in handcuffs immediately rose to the level of an unwarranted custodial detention. DISCUSSION Officers Pryor and Olsen had reliable information in the form of a statement -8- 01-2430 CRIMINAL TERM against interest by an eighteen-year-old arrested by Officer Hockenberry for driving under the influence, that there was a drinking party where that person had been at 2017 Harvard Avenue. When the officers went to investigate at 5:15 a.m., they were seen by three people in a room above the garage. One of those persons sounded an alert that, "it's the cops." As the officers knocked on the front door, bodies came flying out of the house, and over the backyard fence, in a scene reminiscent of a Laurel and Hardy movie. At that point, the officers had reasonable suspicion that the people who were fleeing from the house were underage drinkers. Therefore, Officer Pryor had a right to effectuate a Terry stop to detain defendant for investigation upon reasonable suspicion that criminal activity was afoot. Defendant failed to stop when he was ordered to by the officer. Thus, the officer pursued him, and when he caught him, lawfully detained him for investigation. Officer Pryor immediately smelled the odor of beer on defendant's breath when he cuffed him. Under these circumstances, where defendant fled from an officer seeking to implement a Terry stop, it was not unreasonable for the officer to temporarily cuff him, and walk him the short way back to the location from which he had fled, to conduct his investigation. The officer then issued defendant a summary citation for underage drinking. On these unique facts, which were caused by defendant fleeing from a lawful Terry stop, defendant (1) was not under arrest or under custodial detention during the short time that Officer Pryor asked him some questions about his drinking and his age, and (2) could not have reasonably believed that he was subject to a custodial arrest. Thus, the rights afforded -9- 01-2430 CRIMINAL TERM by Miranda to a person in custodial detention did not apply. For the foregoing reasons, all of the evidence obtained by Officer Pryor is admissible against defendant. ORDER OF COURT AND NOW, this day of April, 2002, the motion of defendant to suppress evidence, IS DENIED. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Samuel Andes, Esquire For Defendant :saa -10-