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HomeMy WebLinkAbout00-0448 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Mo JUSTIN RICHARD SCHLAUDER 00-0448 CRIMINAL IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this ~:>~-' day of June, 2000, the motion of defendant to suppress evidence, IS DENIED. Court~,,,, / By the , Edgar B. Bayley Michael Ferguson, Esquire For the Commonwealth Christopher Marzzacco, Esquire 1 South Baltimore Street Dillsburg, PA 17019 For the Defendant :saa COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JUSTIN RICHARD SCHLAUDER 00-0448 CRIMINAL IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 8, 2000:-- Defendant, Justin Richard Schlauder, is charged with unlawful possession with intent to deliver marijuana,' and unlawful possession of drug paraphernalia.2 He filed a motion to suppress evidence upon which a hearing was conducted on June 6, 2000. We find the following facts. Camp Hill Police Officer Lane Pryor was on patrol in the Borough of Camp Hill on December 9, 1999. At approximately 3:00 p.m., he observed a car stopped at a traffic light. He saw a passenger in the car who was a person he suspected of dealing illegal drugs. The light changed and the car made a turn. Officer Pryor pulled behind the car because he wanted to see where it was going. He then saw that the license plate was unsecured on one side and was hanging at an angle from the other side. The car made a left turn onto Yale Avenue where it was ' 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(32). 00-0448 CRIMINAL stopped by the officer. Officer Pryor approached the car and spoke to the driver, Derreck Clagett. The officer, who had experience with marijuana as a member of the Cumberland County Drug Task Force, smelled marijuana. The person whom he suspected of dealing drugs was in the front passenger seat and defendant was in the rear seat behind the driver. Officer Pryor had Clagett get out of the car and he showed him the dangling license plate? He made a check of Clagett's license and registration which were in order. He asked Clagett about marijuana and Clagett told him there was none in the car. He gave Clagett his cards and told him to fix the license plate. He told him he was free to go. As Clagett walked toward the driver's door the officer said, "By the way - do you mind if I check your car, but you are free to go." Clagett consented. Officer Pryor had defendant and the other passenger get out of the car. He then looked inside the car and found marijuana and drug paraphernalia. He arrested the three men who were transported to a booking center. The car was towed and impounded. There was nothing illegal about Officer Pryor deciding to drive behind the Clagett vehicle when he saw a passenger who he suspected of being a drug dealer. Upon observing that the license plate was not securely fastened he legally stopped the car for violating the Vehicle Code at 75 Pa.C.S. Section 1332(a), which provides: (a) General rule.--Every registration plate shall, at all times, be securely fastened to the vehicle to which it is assigned or on which its use is authorized in accordance with regulations promulgated by the department. 3 The police took a photograph of the license plate at the scene of the stop. It shows the right corner of the plate was almost touching the street. -2- 00-0448 CRIMINAL Noncompliance with Section 1332(a) is a summary offense under Section 6502 of the Vehicle Code. Defendant maintains that all evidence seized by Officer Pryor after he entered Clagett's car must be suppressed? He relies on Commonwealth v. Helm, 690 A.2d 739 (Pa. Super. 1997), and Commonwealth v. Sierra, 723 A.2d 644 (Pa. 1999). The facts in Helm, were: On March 29,1995, at approximately 1:30 a.m., Officer Mark Giza of the South Williamsport Bureau of Police was dispatched to East Second Street in Williamsport to investigate a report of a suspicious person running away with an object on his shoulder. Officer Giza travelled in the directidn in which the report had indicated that the person was headed, and noticed a red Ford parked along the street, with its lights off and its engine running. Appellee was seated alone inside the car. The officer approached Appellee and asked him to produce identification. Appellee was unable to do so, but identified himself as Chad Helm. When the officer asked Appellee why he was parked there, Appellee replied that his car had overheated, and he was allowing the engine to cool down. Officer Giza found this response odd, because of his belief that a car which is parked with its engine idling would tend to overheat faster than a car in motion, due to less air intake. The officer then asked Appellee where he had come from; Appellee first responded that he had come from Williamsport, and later answered that he was coming from a friend's house in South Williamsport, but could not supply the officer with the name or address of the friend. Throughout the conversation, Appellee appeared nervous and jumpy, continually looking around the area. Officer Giza asked Appellee to follow him to a parking lot approximately one block away, where the individual who had initially reported seeing a suspicious person was waiting. Appellee complied, and the officer spoke to the individual who had made the report, however, the individual stated that Appellee was not the suspicious person he had seen earlier, who had 4 Under Article I, section 8 of the Pennsylvania Constitution, a possessory interest in the items seized gives defendant standing to contest Clagett's consent to search his car. Commonwealth v. Sell, 504 Pa. 46 (1983). -3- 00-0448 CRIMINAL been carrying a box on his shoulder, and had set the box down against a building, near a pine tree across the street from the parking lot. Officer Giza returned to Appellee's car, and noticed a black gym bag within arm's reach of Appellee on the front seat of the vehicle. Appellee continued to appear nervous and jumpy. Concerned for his own safety, the officer asked Appellee what was in the bag, and received Appellee's consent to search the bag, which was empty. At this point Officer Giza, having no information which would have given him reason to suspect that Appellee was involved in a serious crime, asked Appellee for permission to search his vehicle. Appellee consented, and in response to the officer's request, opened the trunk of the car. The police officer discovered items in the car, which resulted in the defendant's arrest. Defendant filed a motion to suppress the evidence seized during that search and additional evidence thereafter discovered by the police. The Superior Court of Pennsylvania affirmed the order of the trial court suppressing the evidence, stating: The Commonwealth asserts that although the initial contact between Appellee and the police constituted a mere encounter, Appellee's subsequent conduct under the totality of the circumstances gave the officer reason to suspect that crime was afoot, and therefore the officer was justified in conducting an investigatory detention during, which he received Appellee's permission to search the trunk of the car. The Commonwealth further asserts that the results of the search of the trunk, coupled with Appellee's behavior following the officer's discovery of the speaker, provided the officer with reasonable suspicion that Appellee had committed a crime, thus justifying the further detention of Appellee in the back seat of the police vehicle, where he was given Miranda warnings prior to making his incriminating statement. Accordingly, the Commonwealth contends that the evidence seized from Appellee's car, as well as his subsequent statement, was lawfully obtained and should not have been suppressed. Appellee, on the other hand, contends that because the nature of the encounter with the officer had escalated to an investigatory detention following the search of Appellee's belongings, the officer needed -4- 00-0448 CRIMINAL reasonable suspicion that Appellee was engaged in a serious crime in order to further detain him, and that because such suspicion was lacking, all evidence obtained as a result of the consensual search of the vehicle's trunk was properly suppressed. It is well settled that police officers may have a mere encounter with an individual at any time, and are not required to have reasonable suspicion that criminal activity is afoot unless the nature of the encounter escalates to the level of an investigatory stop. Commonwealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993), allocaturdenied, 537 Pa. 647,644 A.2d 733 (1994). Here, neither party disputes that at the time that the officer obtained Appellee's permission to search the trunk of the car, his interaction with Appellee was no longer a mere encounter, but rather had become an investigative detention, for which reasonable suspicion was required. We agree with the suppression court's conclusion that, at the time Appellee was requested to open his trunk; he was being unlawfully detained, inasmuch as no articulable suspicion existed at that time that Appellee was committing a serious crime. After the fruitless search of the black gym bag; the officer had no reason to suspect that Appellee was engaged in criminal activity, and thus was not justified in detaining him for further questioning. See, Commonwealth v. Lopez, 415 Pa. Super. 252,609 A.2d 177, allocaturdenied, 533 Pa. 598, 617 A.2d 1273 (1992) (police officer's intuition does not constitute a reasonable ground to suspect that criminal activity is afoot). Accordingly, because the continued detention of Appellee was improper, Appellee's consent to the officer's search of his trunk was rendered ineffective, and the evidence obtained as a result of such search was properly suppressed. See, Commonwealth v. Pless, 451 Pa. Super. 209, 679 A.2d 323 (1996), Lopez, supra (defendant's consent to search was tainted by illegality of detention and thus was ineffective to justify the search). Furthermore, because the search of Appellee's trunk was unlawful, all evidence and statements which were subsequently obtained were tainted, notwithstanding the Miranda warnings given to Appellee, and the suppression court did not err in ordering the suppression of such evidence. (Emphasis added.) In Sierra, the facts were: In the instant case, the trial court made the following findings of fact, -5- 00-0448 CRIMINAL which are uncontested by the parties. Appellee was the passenger in a car which West Manchester Township Police Officer Jeffrey Oberdorff observed speeding shortly after midnight on November 21, 1993. Since Office Oberdorff was proceeding in the opposite direction, he radioed a colleague, Officer Keith Roehm, and advised him of his observations. Officer Roehm followed the vehicle for three or four tenths of a mile and determined that it was travelling twenty to twenty-five miles per hour over the posted forty mile per hour speed limit. After stopping the vehicle, Officer Roehm noticed that it had dealer plates. Officer Roehm asked the driver for his license, vehicle registration, and insurance card. The driver complied with the request. Noticing that the license had expired, that the driver had a gang tattoo under his left eye, that the car contained a number of boxed motorcycle parts, and that the occupants of the car appeared nervous, Officer Roehm then asked whether there was anything illegal in the vehicle. After the driver responded in the negative, Officer Roehm proceeded to his police cruiser to check the license status and to write a warning for speeding. A few moments later, as Officer Roehm returned to the vehicle, Officer Oberdorff arrived on the scene and positioned himself beside the passenger side of the car. After handing the driver his documentation and having him sign the written warning, Officer Roehm again asked if there was anything illegal in the car. The driver said, 'No, would you like to look?,' to which Officer Roehm responded, 'Yes, if you don't mind.' Officer Roehm then asked the two men to exit the vehicle so the officers could conduct a brief pat-down search for weapons. While patting down appellee's clothing, Officer Oberdorff found a semi-automatic handgun in the waistband in the back of appellee's pants. Three months later, after it was determined that appellee had no permit for the gun, he was arrested and charged with violating the prohibition against former convicts owning firearms and carrying a firearm without a license. The defendant sought to suppress the evidence seized during the search. The motion was denied by the trial court, but the Superior Court of Pennsylvania reversed. Commonwealth v. Sierra, 678 A.2d 834 (1996). -6- 00-0448 CRIMINAL It reasoned that Officer Roehm lacked a reasonable suspicion of criminal activity at the time of his second inquiry regarding the presence of illegal items in the automobile and thus had no legitimate basis to continue his investigation. As a result, the driver's consent to search the car and the subsequent pat-down search were tainted. In a plurality opinion, the Supreme Court of Pennsylvania affirmed the judgment of the Superior Court. Justice Nigro, in the opinion in support of affirmance, stated: In the present case, the Commonwealth argues that the officer's questioning cannot be characterized as an investigative detention because Officer Roehm had returned the driver's license and registration and had issued a warning for speeding prior to asking any questions of the driver, because there was no show of physical force or authority over the driver, and because the question asked by Officer Roehm was not a request to search the vehicle. Given the circumstances surrounding the encounter, we cannot agree that the occupants should have known that they could depart once the officer returned the driver's documentation and issued the warning. At the time the driver's documentation was returned, two officers continued to surround the vehicle. Additionally, Officer Oberdorff arrived on the scene after the first question had been posed by Officer Roehm, thus heightening the coercive atmosphere at the time of the second question. Further, Officer Roehm exerted continued pressure on the driver by repeating the same question despite having received a negative response to his initial inquiry. The cumulative effect of these circumstances was such that no reasonable person would have felt free to terminate the encounter. See Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)('a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle .... Certainly few motorists would feel free.., to leave the scene of a traffic stop without being told they might do so.'); Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993)(holding that police officer's continued detention of driver stopped for traffic violation, after officer issued traffic citation, constituted seizure and was improper). Thus, we conclude that the officer's continued questioning of the driver constituted an investigative detention. -7- 00-0448 CRIMINAL (Emphasis added.) Justice Nigro then states "None of the officer's observations demonstrate, or even suggest illegal activity: Accordingly, because Officer Roehm had no legitimate basis to suspect that criminal activity was afoot, we conclude that he had no legitimate basis to detain the occupants of the vehicle once matters relating to the speeding violation were resolved. Thus, the detention was unlawful. (Emphasis added.) When a consensual search is preceded by an illegal detention, 'the government must prove not only the voluntariness of the consent under the totality of circumstances, but.., must also establish a break in the causal connection between the illegality and the evidence thereby obtained .' Under the facts of the present case, there was insufficient attenuation between the consent and the illegal detention to purge the taint of the officer's illegal conduct. Since the officers lacked reasonable suspicion to support the detention and the driver's consent was tainted, the officers had no authority to search the car. (Citations omitted.) (Emphasis added.) The Commonwealth relies on an en banc decision of the Superior Court of Pennsylvania in Commonwealth v. Hoak, 700 A.2d 1263 (Pa. Super. 1997), in which the facts were: Around 1:45 a.m. November 22, 1994, Officer John Miller lawfully stopped appellant for straddling the center line, and driving erratically and with a burned-out taillight. After issuing a warning and returning -8- 00-0448 CRIMINAL appellant's driver's license and vehicle registration, Officer Miller told appellant he was free to leave. The officer then asked appellant if he would answer some questions; appellant said he would. The officer asked appellant what was in the luggage and duffle bag in the trunk; appellant said, 'Dirty clothes. Do you want to look?' When the officer asked, 'Do you mind?', appellant said, 'No.' The officer searched, and found two bags containing marijuana, an envelope containing marijuana seeds and a marijuana cigarette in a stainless steel holder. Defendant was convicted of violating 35 P.S. Section 780-113(a)(31) & (32) after his motion to suppress evidence of the seized marijuana and paraphernalia was denied. The Superior Court affirmed, stating: Since appellant was lawfully stopped and he voluntarily consented to a search during a subsequent permissible and lawful encounter, the evidence found was admissible, and we affirm the judgment of sentence. Not every encounter, and certainly not the consensual post-traffic stop in the instant case, is a seizure. The Fourth Amendment and the Pennsylvania Constitution proscribe unreasonable searches and seizures; they do not proscribe voluntary cooperation. To characterize as a nonconsensual seizure appellant's encounter with police after the traffic stop concluded ignores the facts, the law and the application of the law to the facts. It is neither objectively reasonable nor constitutionally justifiable. (Emphasis added.) We find the events following the conclusion of the traffic stop flowed from appellant's voluntary agreement to answer some questions, and are not properly attributable to the stop itself. Appellant was no longer being detained when he offered to let police search his bags? It is 9 The officer never asked to search appellant's bags; it was appellant who asked the officer whether he 'want[ed] to look' in the bags. Moreover, when the officer asked 'do you mind,' a rather polite response, hardly evocative of coercion, appellant said he did not. Clearly, appellant freely, specifically, unequivocally and voluntarily consented to this search. -9- 00-0448 CRIMINAL well-settled that one of the specifically established exceptions to the requirement of a... warrant.., is a search that is conducted pursuant to consent. [I]f a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. The consent, however, must be given freely, specifically, unequivocally, and voluntarily. The question [of] whether [the] consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. (Emphasis in original.) In reaching its decision the Superior Court emphasized that the defendant's consent to search his vehicle came after his driver's license and vehicle registration had been returned and after he had been told that he was free to leave. The Court thus distinguished the panel decision in Commonwealth v. Lopez, 415 Pa. Super. 252 (1992), and did not follow the panel decisions in Commonwealth v. Parker, 422 Pa. Super. 393 (1993), and Commonwealth v. Pless, 451 Pa. Super. 209 (1996). An evenly divided Supreme Court of Pennsylvania affirmed in Commonwealth v. Hoak, 734 A.2d 1275 (Pa. 1999). In Commonwealth v. Beers, 47 Cumberland L.J. 124 (1998), this court noted that it was in agreement with the dissenting opinion of Judge Johnson in Hoak, in which he stated: Here, it is undisputed that Hoak was seized when the police ordered him to stop. After the officer issued him the warning for the inoperative taillight, Hoak was presented with, at best, an ambiguous situation: The officer returned Hoak's documents and advised him that he was free to leave, but immediately confronted Hoak with his manifest desire to continue the traffic stop by asking Hoak questions. Under the circumstances, I believe that a reasonable person would continue to feel subject to the officer's control and, thus, not free to drive away.. ·. Accordingly, I would hold that Hoak was still seized under Article 00-0448 CRIMINAL I, Section 8 of the Pennsylvania Constitution when the officer asked him to answer questions and inquired about the contents of his luggage; this seizure vitiated his consent to search the duffel bag. [Commonwealth v. Pless, 451 Pa. Super. 209 (1996)]. I would therefore reverse the judgment of sentence and order that the evidence seized during the search be suppressed. (Emphasis added.) We stated in Beers our belief that "[T]he test for any continued detention of a driver for investigation after a traffic stop has been concluded should require a reasonable belief that criminal activity is afoot." However, we acknowledged that we were bound by the decision of the Superior Court in Hoak. Therefore, in Beers we denied a motion of the defendant to suppress evidence seized in the search of an automobile on the following facts. At approximately 2:50 a.m., on September 14, 1997, Officer Justin Spaulding of the Lower Allen Township Police Department was on patrol in Lower Allen Township. He was in an area where several burglaries and break-ins had previously occurred. A vehicle was behind the officer. Every time the officer slowed his patrol vehicle, the vehicle behind him slowed down his speed. The vehicle remained a steady five to seven car lengths behind the officer. Officer Spaulding made a left turn at a red light, and the vehicle behind him made a right turn. The officer turned around and got behind the vehicle. He followed it for about one-half mile. Officer Spaulding believed that the muffler of the vehicle was 'pretty loud,' and he stopped it for that reason.3 The vehicle was operated by defendant, age 18. It was owned by defendant's brother. Defendant is a locksmith who has dropped out of high school. There was a juvenile in the right front seat of the vehicle. Officer Spaulding obtained defendant's cards. Defendant's eyes were glassy and bloodshot. Officer Spaulding thought that defendant had been drinking. After another officer arrived at the scene, Officer Spaulding asked defendant to get out of the vehicle. He preformed a horizontal gaze nystagmus test on defendant which defendant passed. Defendant 3 There was no erratic driving or other traffic violation. -11- 00-0448 CRIMINAL was then given a pre-breath test which reflected that he had no alcohol in his body. Officer Spaulding gave defendant back his cards. He told defendant that the muffler must be fixed. He then told defendant that he was released and free to leave. Defendant started to walk back to his car. Officer Spaulding then asked defendant if he had any stolen items in the car such as stereos, televisions, guns, or any contraband. Defendant appeared nervous, and he said 'no.' The officer asked defendant if he 'minded' if he took a look inside the car. After hesitating, defendant said 'okay.' The officer had the juvenile get out of the car. Officer Spaulding looked under the front seat and discovered marijuana. He arrested defendant. The car was impounded and towed. The holding in Commonwealth v. Hoak, supra, is applicable, as it was in Commonwealth v. Beers, supra, because Officer Pryor told Clagett that he was free to leave before he asked him for consent to check his car, which consent was immediately forthcoming. Clagett was not illegally detained when he gave his consent to Officer Pryor to check his car, thus the consent was not tainted and the search was lawful. Furthermore, because Officer Pryor smelled marijuana when he first talked to Clagett as he was standing outside of the driver's door, we conclude that he actually had reasonable suspicion to temporarily detain Clagett and seek his consent to search the car. Thus, the search was not illegal even under the rulings in Commonwealth v. Helm, supra and Commonwealth v. Sierra, supra. Lastly, the search of the car was justified because Officer Pryor, an experienced drug officer, smelled marijuana when he initially talked to the driver, who was inside the car. Probable cause, in the context of a search of a motor vehicle, "exists if the facts available to the police officer would warrant a man of reasonable caution to believe a -12- 00-0448 CRIMINAL search would result in the discovery of contraband." Commonwealth v. Williams, 491 Pa. Super. 380 (1992). The warrantless search of Clagett's car was legal because (1) there was probable cause to believe that it contained contraband, (2) unless it was searched it would be driven away and the contents could not again be located by the police, and (3) Officer Pryor obtained his probable cause in a way that he could not have previously secured a warrant for the search, i.e., there were exigent circumstances. Commonwealth v. White, 543 Pa. 45 (1995). For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this ~;,1~,. day of June, 2000, the motion of defendant to suppress evidence, IS DENIED. BY t_/'~ C°urt~~//~~~/~ Edgar B. Bayley~~J( Michael Ferguson, Esquire For the Commonwealth Christopher Marzzacco, Esquire 1 South Baltimore Street Dillsburg, PA 17019 For the Defendant :saa -13-