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HomeMy WebLinkAboutCP-21-CR-1404-2006 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-2I-CR-I404-2006 CHARGE: (1) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA AFFIANT: CPL. JONATHAN MAYS CARRIE JEAN SHEEDER OTN: H774639-5 IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, 1. OPINION AND ORDER On February 12, 2005, Sergeant Jonathan Mays, a soon to be eleven year veteran of the Pennsylvania State Police, was working the midnight shift as a patrol section supervisor. He was in a marked car on routine patrol doing speed enforcement on State Route 641, Monroe Township, Cumberland County. (Tr. at 3.) He was monitoring traffic via radar, and pulled over a car owned by Defendant Carrie Jean Sheeder ("Sheeder") traveling sixty-one miles per hour in a forty-five mile-per-hour zone. (Tr. at 3.) Once the car was pulled over, Sergeant Mays approached the vehicle. He noticed that there were two people in the car, and "there was a lot of movement in the interior of the vehicle in and around the seats, atypical of what I usually see on a traffic stop." (Tr. at 4.) Sergeant Mays explained that he often sees a driver reach to a center console or a glove compartment, but not movement in and around the floor area of a vehicle by both the driver and passenger. (Tr. at 4, 11.) Sergeant Mays asked and received from the female driver her driver's license and registration. The driver was not Sheeder, as Sheeder was in the passenger seat. Sergeant Mays noticed a pack of cigars in the driver's purse, and noticed that there was a large amount of loose tobacco on the floor of the vehicle. (Tr. at 4-5.) Sergeant Mays testified that cigars are often CP-2I-CR-I404-2006 hollowed out for the consumption of contraband, specifically marijuana, and the loose tobacco in the car raised his suspicion. (Tr. at 4-5.) After receiving the license and registration, Sergeant Mays went back to his vehicle to make sure they were valid and to check the license plate of the car. (Tr. at 6.) He decided to give the driver a verbal warning, and had her step to the rear of the vehicle to do so. After giving her the verbal warning, he told her she was free to leave, and she moved back to the vehicle. Sergeant Mays also started walking away towards his police car. Before the driver and Sergeant Mays got into their vehicles, Sergeant Mays "turned around and called out to her and asked her if she could answer a few questions." (Tr. at 6.) The driver returned to the rear of the car, and Sergeant Mays pointed out to her his observations of the loose tobacco and his suspicions that contraband may have been used. She indicated that she did not have any contraband, and she consented to a search of her person and her bag. (Tr. at 6-7.) No contraband was found on her person or in her bag. Sergeant Mays asked the driver to stay to the rear of the car as he approached Sheeder in the passenger seat. Sergeant Mays testified that prior to searching the car and while speaking to her, either when she was still in the car or standing outside of it, he "pointed out the fact that this was a consent search, the same things I informed the driver, that they were free to leave but I had these concerns and asked her if she would answer a few questions, and she agreed." (Tr. at 7.) Sergeant Mays related his concerns and suspicions to Sheeder, and Sheeder indicated that she did not use nor have any contraband. (Tr. at 7.) Sheeder consented to the search of the car and was then directed to step to the back of the vehicle. Sergeant Mays had her show him that she had nothing in her pockets. While searching the car, Sergeant Mays found a black case under the passenger's seat which contained a glass pipe. Sergeant Mays testified that the glass pipe 2 CP-2I-CR-I404-2006 "contained suspected marijuana, as it had the odor." (Tr. at 8.) Sergeant Mays finished searching the car, and then informed Sheeder that he found the item, would be releasing her, but would be filing charges for the possession of the controlled substance device. (Tr. at 8.) On cross-examination, Sergeant Mays testified that the night of February 12 was the first night he saw Sheeder's car on Trindle Road (Tr. at 16), Trindle Road is not a high crime area (Tr. at 11), he did not know who was in the car, he did not notice an odor of tobacco in the car, and the cigars he saw in the driver's purse were packaged. (Tr. at 16.) DISCUSSION The Pennsylvania Supreme Court in Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000), set forth the analysis of the Fourth Amendment of the United States Constitution as it relates to consent searches incident to a traffic stop. The primary inquiry in consent cases is the assessment of the constitutional validity of the citizen/police encounter giving rise to the consent. Id Ifunconstitutional, then any ensuing consent search is unconstitutional and any fruits thereof should be suppressed. Instances of police questioning of a citizen that involve no seizure are considered mere encounters and do not need to be supported by any level of suspicion in order to be valid. Id at 889. An investigatory detention, however, must be supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity. Id at 889. If a police/citizen interaction is valid, then voluntariness of the consent becomes the sole focus. Commonwealth v. Freeman, 757 A.2d 903, 906 (Pa. 2000). However, where an illegal seizure of a person precedes the consent search, the Commonwealth must establish a break in the causal connection between the illegality and the evidence obtained thereby. Id 3 CP-2I-CR-I404-2006 The initial question in this case is whether the interaction that took place between Sergeant Mays and Sheeder was a mere encounter or an investigatory detention. In making this determination, we must apply a "totality of the circumstances" test. See generally Strickler, 757 A.2d at 901-02. Using this test, courts "...must discern whether, as a matter oflaw, police have conducted a seizure of the person involved." Commonwealth v. Maxon, 798 A.2d 761, 766 (Pa.Super.Ct. 2002). A mere encounter would occur and not a seizure if "taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he or she was free to ignore the police questioning or otherwise end the encounter." Com. v. Phinn, 761 A.2d at 183, n. 3. In Commonwealth v. Freeman, the Pennsylvania Supreme Court used the following factors to determine whether or not the defendant had been seized: "Factors relevant to such assessment include: the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example-the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and "excesses" factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police citizen interaction." 757 A.2d at 906-07. 4 CP-2I-CR-I404-2006 After examination of the totality of the circumstances of the present case, it is apparent that Sheeder was seized, and therefore the encounter between Sergeant Mays and her was an investigatory detention. A reasonable person in Sheeder's shoes would not have felt as though she could end the encounter. Sheeder was a teenage girl. The stop was effectuated at night, in the dark, on the side of the road. Although there is no claim that Sergeant Mays was forceful in touch or language, he was armed and in uniform, and coming from a marked police car. Sheeder would not have known what had transpired between the driver and Sergeant Mays behind the car. Also, Sergeant Mays asked Sheeder to exit the car, and directed her to move to the back of the vehicle and also to show him what was in her pockets. Although Sergeant Mays explained to Sheeder that she was free to go and decline the search if she so desired, "[t]he conferral of the "free-to-go" advice is, itself, not a reason to forego a totality assessment, as, for example... the absence of any available means of egress would be circumstances remaining after the ostensible conclusion of a traffic stop which would color any such advice." Strickler, 757 A.2d at 899, n. 24. It is significant here that Sheeder had no available means of egress. The driver of the car was still standing behind the car when the interaction between Sergeant Mays and Sheeder took place, and Sheeder was in the passenger seat or just outside the car. Although she was "free-to- go," she, in fact, had nowhere to go. As noted above, Sergeant Mays was constitutionally required to have a reasonable suspicion that criminal activity was afoot in order to effectuate the seizure. The Commonwealth argues that because Sergeant Mays saw furtive movements immediately after pulling the car over, and because he observed what he considered a large amount of tobacco on the floor of the car, he had reasonable suspicion to temporarily seize Sheeder. (Tr. at 22.) However, these two 5 CP-2I-CR-I404-2006 observations alone do not give Sergeant Mays the reasonable suspicion to believe that contraband was located in the vehicle. In Com. v. Phinn, 761 A.2d 176 (Pa.Super. 2000), the defendant was also a passenger in a car involved in a traffic stop. The traffic stop had concluded, but the police officer proceeded with the encounter, which was deemed an investigatory detention by the Pennsylvania Superior Court. The police officer testified that he detected the odor of fabric softener and saw an "air freshener" in the car, which drug transporters sometimes use to mask the odor of marijuana. He also saw a furtive movement under the seat as he approached the vehicle, and the driver and the passenger told conflicting stories when asked where they were traveling to and from. Phinn,76I A.2d at 180. The Pennsylvania Superior Court in Phinn found that these observations and facts did not support a reasonable suspicion of criminal activity, and the evidence received from the subsequent consent search was suppressed. Id at 186. In the present case, as in Phinn, the officer saw furtive movements and a sign, tobacco on the floor of the car, that marijuana could have been present. Here, however, there were no conflicting stories between the passenger and driver of the car. We conclude that the facts from the present case do not support a finding of reasonable suspicion of criminal activity. Inasmuch as the investigatory detention was invalid, the consent search is therefore invalid. ORDER AND NOW, this day of October, 2006, the omnibus pretrial motion of the 6 CP-2I-CR-I404-2006 defendant in the nature of a motion to suppress evidence is GRANTED. BY THE COURT, Kevin A. Hess, 1. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Timothy L. Clawges, Esquire Assistant Public Defender :rlm 7 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-2I-CR-I404-2006 CHARGE: (1) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA AFFIANT: CPL. JONATHAN MAYS CARRIE JEAN SHEEDER OTN: H774639-5 IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, 1. ORDER AND NOW, this day of October, 2006, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is GRANTED. BY THE COURT, Kevin A. Hess, 1. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Timothy L. Clawges, Esquire Assistant Public Defender :rlm