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HomeMy WebLinkAbout99-2626 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Mo NATHAN METCALF 99-2626 CRIMINAL TERM IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J.. ORDER OF COURT AND NOW, this [ ~D ~ .. day of February, 2000, IT IS ORDERED that all evidence obtained after the stop of the vehicle in which defendant was a passenger on October 11, 1999, IS SUPPRESSED. - By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire For the Commonwealth / Samuel W. Milkes, Esquire For Defendant :saa COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NATHAN METCALF 99-2626 CRIMINAL TERM IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., February 16, 2000:-- Defendant, Nathan Metcalf, is charged with unlawful possession with intent to deliver marijuana,' unlawful possession of a small amount of marijuana? and unlawful possession of drug paraphernalia.3 He filed a motion to suppress evidence upon which a hearing was conducted on February 15, 2000. We find the following facts. On October 11, 1999, Troopers Jonathan Mays and Jason Carbaugh of the Pennsylvania State Police were on patrol in an area of South Middleton Township where for the past two months there had been numerous burglaries and car break-ins. At 2:45 a.m., the troopers saw a blue van traveling east on Park Drive which was in the area where the criminal activity had previously occurred. There were no other vehicles ' 35 Pa.C.S. § 780-113(a)(30). 2 35 Pa.C.S. § 780-113(a)(31). 3 35 Pa.C.S. § 780-113(a)(32). 99-2626 CRIMINAL TERM on the road at the time. The troopers ran a radio check on the license plate of the van and learned that it was registered at 20 Pine Street in the Borough of Carlisle. Trooper Carbaugh had been on desk duty the night before when at 12:30 a.m., a patrol unit checking in the same area had reported a vehicle in the area registered at the same 20 Pine Street, Carlisle address. The troopers initially observed the van on October 11th traveling away from Mt. Holly Springs. The vehicle made turns on two roads that then put it headed back in the direction of Mt. Holly Springs. At that point, the troopers stopped the van. They had not seen any violations of the Motor Vehicle Code or criminal activity before the stop. They acknowledge that the van was stopped solely for investigation. Trooper Mays got the driver out of the vehicle. Defendant was a passenger and Trooper Carbaugh smelled an odor of alcohol coming from him. He had defendant get out of the vehicle. He then learned that defendant was eighteen years of age. Trooper Mays then saw a cigar box and a blue bag with plastic rolled tight with a green vegetable substance on the floor of the passenger side of the vehicle. Trooper Carbaugh placed defendant under arrest for underage driving and read him his Miranda rights. He questioned defendant about what Trooper Mays had seen and defendant told him that he had been selling marijuana for $20 a bag to support his habit. The driver then consented to a search of the vehicle but nothing else was found. The driver was not arrested. In Commonwealth ¥. Nagle, 451Pa. Super. 16 (1996), the facts were that: -2- 99-2626 CRIMINAL TERM In the early morning hours of May 7, 1995, Officer Waligorski received a police radio report of a suspicious looking dark green pick-up truck that had been driving up and down a private neighborhood street in Berks County for over two hours. Residents of the neighborhood had called the local police station to report this suspicious vehicle. Within minutes of receiving the report, Officer Waligorski arrived on the scene where he witnessed a dark green truck fitting the report's description. The truck, which was not involved in any apparent moving violations, was driven by appellant Douglas Nagle, Jr. The officer then stopped the truck and asked Nagle for his driver's license. Nagle admitted that he did not have his license, due to the fact that it had been suspended for failure to submit to a chemical test during a DUI investigation. Officer Waligorski issued Nagle a citation for Driving While Operating Privileges were Under Suspension .... The defendant filed a motion to suppress evidence which was denied by the trial court after which he was found guilty of driving under suspension. The Superior Court of Pennsylvania reversed holding that the trial court erred in not suppressing the evidence obtained as a result of the stop. The Court stated: This court, in Commonwealth v. Knotts, 444 Pa.Super. 60, 663 A.2d 216 (1995), aptly summarized the law regarding legal stops of motor vehicles: When police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle and its occupants, are considered 'seized' and this seizure is subject to constitutional constraints. Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992). [A]n officer may make an investigatory stop where he observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot. Such an investigatory stop of an automobile must be based on objective facts creating a reasonable suspicion that the motorist is presently involved in criminal activity. The officer must be able to point to specific and articulable facts which[,] taken together with rational inferences from these facts[,] reasonably warrant the intrusion. Commonwealth v. Valenzuela, 408 Pa. Super. 399,408,597 A.2d 93, 98 (1991) (citations omitted). -3- 99-2626 CRIMINAL TERM Id., 444 Pa. Super. at 64, 663 A.2d at 218-19. In this case, we must determine whether the information available to Officer Waligorski at the time he pulled over Nagle's truck created a reasonable suspicion that Nagle was 'presently involved in criminal activity.' When Officer Waligorski stopped Nagle he had information from a police report that: (1) there was a suspicious vehicle travelling up and down Vista Road, in Berks County; (2) the vehicle would travel east and westbound on the road, then stop for several minutes, and then resume its back and forth journey up and down the road; (3) the vehicle had been engaged in such activity for approximately two hours; and (4) the vehicle was a large green pick-up truck. When we evaluate the evidence available to Officer Waligorski based on the 'totality of the circumstances' at the time he stopped Nagle, it is clear that the quantity of the information was extremely limited. First, there was a dearth of information regarding the allegedly suspicious activity of Nagle's truck; the facts which were provided in the report were extremely unsuspecting and general in nature. Accordingly, the report provided Officer Waligorski with no objective facts creating a reasonable suspicion that Nagle was presently involved in criminal activity at the time of the investigatory stop. See Knotts, supra. In Commonwealth v. Scherzer, 40 Cumberland L.J. 374 (1990), aff'd 410 Pa. Super. 656 (1991), Officer Burger of Silver Springs Township, Cumberland County, while in uniform and in a marked car was performing business checks in a commercial area along the Carlisle Pike, a major four-lane highway. Them had been previous burglaries, thefts, and criminal mischief in that area. At approximately 1:00 a.m., the officer pulled into the parking lot of Popeye's Chicken restaurant on the east side of the store, then drove around the back of the store to the west side. The restaurant was closed, and as he rounded the back of the building he observed a vehicle pulling into the parking lot. As the officer straightened his vehicle out, the headlights of the two cars faced each other. The operator of the other vehicle, which had three people in it, 99-2626 CRIMINAL TERM then made an abrupt three-point turn and started back towards the Carlisle Pike. The vehicle turned left onto the Pike, southbound without activating a left turn signal. Officer Burger followed and turned on his patrol car lights approximately 100 yards down the road, at which time the driver, defendant Carl Scherzer, immediately pulled into a parking lot and stopped. There was no abnormal driving by defendant. Officer Burger testified that he stopped defendant because of the abruptness of the turn and the suspicious nature of his activity. He stated that there was no reason for a person to be in the parking lot of Popeye's when no lights were on in the restaurant. After determining that there was no Vehicle Code violation for not activating a turn signal before entering a highway from the parking lot, and thus no probable cause to believe that there was a summary violation which would have justified the stop, this court suppressed the evidence obtained after the stop citing the standard for making an investigatory stop set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and stating: [d]efendant never even took 'flight' from Officer Burger. An abrupt three- point turn is not flight. When defendant observed the police officer, he turned around and left the parking lot of Popeye's; however, there was no abnormal driving, and when Officer Burger followed him and activated the patrol lights on the police car approximately 100 yards away, defendant immediately pulled off the highway and stopped his car. Therefore, the only information that Officer Burger knew at the time he stopped defendant, which the Commonwealth argues forms a reasonable belief that criminal activity is afoot, is that defendant pulled into a parking lot in front of a closed restaurant at approximately 1:00 a.m., and upon seeing a police car, turned around and drove out of the lot. There is no evidence that any burglaries were reported or were known by Officer Burger to have occurred that evening. On these facts we conclude that there was no -5- 99-2626 CRIMINAL TERM Applying the principles set forth in Terry v. Ohio, supra, Commonwealth v. Nagle, supra, Commonwealth v. Scherzer, supra, and Commonwealth v. DeWitt, supra, to the case sub judice, we conclude that there was no evidence that the people in the van in which defendant was a passenger were engaged in criminal activity which would justify an investigatory stop by Troopers Mays and Carbaugh. There is nothing illegal about driving around in the middle of the night. There was not even any flight involved even though flight, in and of itself, does not constitute reasonable suspicion of criminal conduct.4 The troopers not having reasonable suspicion of criminal conduct sufficient to make an investigatory stop requires that we grant the motion of defendant to suppress all evidence obtained after the stop. ORDER OF COURT AND NOW, this J ~0 ~'' day of February, 2000, IT IS ORDERED that all evidence obtained after the stop of the vehicle in which defendant was a passenger on October 11, 1999, IS SUPPRESSED. By the.Court, ~"'"! ,.~? / B."'~yloy~ J. / Edgar Jonathan R. Birbeck, Esquire ~ For the Commonwealth Samuel W. Milkes, Esquire For Defendant :saa See also In The Interest of D.M., 743 A.2d 442 (Pa. 1999). -8-