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HomeMy WebLinkAbout97-2384 criminalCOMMONWEALTH Ve MICHAEL RAY POWERS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : NO. 97-2384 CRIMINAL TERM : · · IN RE: DEFENDANT ' S OMNIBUS PRE TRIAL MOTION BEFORE GUIDO, J. AND NOW, this ORDER OF COURT day of MARCH, 1998, after hearing on Defendant's Omnibus Pre Trial Motion, his request to suppress evidence is DENIED. By the C Edward E. Guido, Judge Will Gabig, Esquire For the Commonwealth Austin Grogan, Esquire For the Defendant :sld COMMONWEALTH Vo MICHAEL RAY POWERS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-2384 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRE TRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The Defendant filed an Omnibus Pre Trial Motion alleging the initial stop of his vehicle was without legal basis or justification and the subsequent search of his vehicle was illegal. A hearing on his Motion was held before this Court on March 6, 1998. Pursuant to Pa. Rule of Criminal Procedure 323(i) the Court makes the following findings of fact and conclusions of ]aw. FINDINGS OF FACT 1) On December 2, 1997, Patrolman Lane Pryor was on routine patrol at approximately 9:30 p.m. in the Borough of Camp Hill in a marked patrol vehicle. 2) He noticed a vehicle with dark window tint on all sides and on the rear window. It appeared to the officer that the vehicle was in violation of Section 4524(e) of the Vehicle Code. 75 Pa. C.S.A. § 4524(e) 3) Prior to December 2, 1997, the Officer had issued approximately eighty (80) different citations for violation of Section 4524(e) of the vehicle code. Ail but one citation resulted in a conviction. 4) As the Officer approached the vehicle, he could see nothing NO. 97-2384 CRIMINAL TERM inside it. The window tint was the worst he had ever seen. 5) As it turned out, a citation was not issued. However, the Officer did measure the window tint and it was not legal. 6) The Officer approached the passenger side and directed that anyone in there should roll the window down. 7) When the window was rolled down he noticed the driver and two occupants. One occupant was in the passenger seat and one was in the rear seat. 8) The Officer then approached the driver's side and asked the Defendant driver to exit the vehicle. 9) The Officer asked the Defendant who his passengers were. The Defendant refused to answer and indicated that the Officer would have to ask the passengers himself. 10) He obtained the driver's license, and vehicle registration from the Defendant. Everything appeared to be in order. 11) The Officer asked the Defendant to stay where he was while he went to check the identification of the passengers. 12) When he asked who the front seat passenger who he was, the response was "Colton Barnhart." 13) The Officer had recognized the name of the Defendant when he reviewed his license. As the Officer stated, "it raised a red flag". However, the Officer could not recall how he might know the Defendant. 14) When the Officer heard the name Colton Barnhart he realized how he knew the Defendant's name. NO. 97-2384 CRIMINAL TERM 15) Approximately two weeks earlier, the Officer had been advised by a reliable confidential informant that Colton Barnhart and Defendant were gang members who had purchased firearms. (Prior to this incident, the informant had provided the Officer with information that had resulted in two successful prosecutions. ) 16) The Officer determined that he would need back up to help him do an appropriate pat down on the occupants in the vehicle to assure his safety during this vehicle stop. 17) Officer Bingham of the Camp Hill Township Police arrived as the back up. 18) Ail of the occupants of the vehicle were removed, and patted down. 19) The Officer intended to do a quick search of the vehicle to make sure that there were no weapons within reach. He was then going to allow the occupants to re-enter the vehicle while he completed the traffic stop. 20) While performing a perfunctory search of easily accessible areas of the vehicle, the Officer found a loaded Smith and Wesson revolver under the passenger front seat along with an ammunition clip next to it. 21) To effectuate the search the Officer had to open each of the doors, stick his head in with a flashlight and look under and around the seating area. 22) The Officer testified unequivocally that the search was made NO. 97-2384 CRIMINAL TERM only to protect himself. CONCLUS IONS OF LAW 1. The Officer had articulable and reasonable grounds to suspect that Defendant had violated Section 4524(e) of the vehicle code "Sun screening and other materials prohibited." 75 Pa. C.S.A. § 4524(e). 2. The Officer had authority to stop Defendant's vehicle to secure information pursuant to Section 6308 of the Vehicle Code. 75 Pa.C.S.A. § 6308[b]. See also Commonwealth v. Pollock, 606 A.2d 500, 414 Pa. Super 66 (1992) and Commonwealth v. Triplett, 564 A.2d 227 387 Pa. Super 378 (1989). 3. The Officer had a reasonable and articulable suspicion that the Defendant may have access to weapons. 4. The Officer's search of the automobile and subsequent seizures of the loaded weapon and magazine clip were proper. [See Commonwealth v. Morris, Pa. ____, 644 A.2d 721 (1994). 5. The relief requested in Defendant's Omnibus Pre Trial Motion should be, and is hereby, DENIED. AND NOW, this ORDER day of MARCH, 1998, after hearing on Defendant's Omnibus Pre Trial Motion, his request to suppress evidence is DENIED. By the Court, Will Gabig, Esquire For the Commonwealth Austin Grogan, Esquire For the Defendant /s/ Edward E. Guido Edward E. Guido, Judge