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HomeMy WebLinkAbout98-0377 criminalCOMMONWEALTH OF PENNSYLVANIA Vo PATRICK DALE SEAUX, Defendant. : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA :No. 98-0377 CRIMINAL TERM : CHARGE: UNLAWFUL POSSESSION OF A : SMALL AMOUNT OF MARIJUANA : and DISORDERLY CONDUCT IN RE: DEFENDANT'S OMNIBUS PRE TRIAL MOTION BEFORE GUIDO~ J. AND NOW, this ORDER OF COURT day of JULY, 1998, after hearing, the Defendant's Motion to Suppress is GRANTED and the Commonwealth is precluded from introducing at trial the marijuana found on the Defendant. Jon Birbeck, Esq. Attomey for the Commonwealth Michael Ferguson, Law Clerk Ellen K. Berry, Esq. First Assistant Public Defender By the Court, Edw E. Guido, J. COMMONWEALTH OF PENNSYLVANIA Vo PATRICK DALE SEAUX, Defendant. · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · No.' 98-0377 CRIMINAL TERM : CHARGE: UNLAWFUL POSSESSION OF A · SMALL AMOUNT OF MARIJUANA · and DISORDERLY CONDUCT · 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 that the pat down search of his person prior to the issuance of a summary citation was illegal. Therefore, he has requested that all evidence obtained in connection therewith be suppressed. A heating on said motion was held before this Court on June 19, 1998. Pursuant to Pa. Rule of Criminal Procedure 323(i) the Court makes the following findings of fact and conclusions of law. FIND~GS OF FACT Carlisle Police Officer Eric Dale was in a marked patrol vehicle on routine patrol in the Borough of Carlisle on September 28, 1997. (2) At approximately 2:00 A.M., while on West High Street, the officer noticed the Defendant urinating on the sidewalk and against the Financial Trust building. (3) West High Street is one of the main streets in the Borough of Carlisle and is a major thoroughfare. There were at least two other people on West High Street in the vicinity of the Defendant at the time this incidem occurred. (4) The officer approached the Defendant and obtained identification. (5) The officer informed the Defendant that he was going to be issued a citation for disorderly conduct. He directed the Defendant to enter the backseat of the patrol vehicle while the citation No. 98-0377 CRIMINAL was being prepared. (6) Since the officer had never had any prior dealings with the Defendant, and since the officer was alone, he felt it necessary, for safety reasons, to request the Defendant to sit in the police car while the citation was being issued. (7) The officer performed a pat down search of the Defendant prior to his entry into the police vehicle. (8) Pursuant to the pat down search, the officer felt a bulge in the Defendant's front pants pocket. When the Defendant emptied his pocket, the officer confiscated a small amount of marijuana. (9) The officer intended to issue a citation and release the Defendant. It was not until he discovered the marijuana that the Defendant was taken into custody and processed. .CONCLUSIONS OF LAW (1) The pat down search of Defendant was not justified as being incident to a lawful arrest. (2) The brief detention of Defendant for the purpose of issuing a summary disorderly conduct citation was appropriate. (3) The pat down search was not authorized pursuant to an investigative detemion. (4) The marijuana seized pursuant to the pat down search must be suppressed. DISCUSSION The narrow issue before us is whether the officer was justified in performing a pat down search of the Defendant pursuant to his issuance of a citation for disorderly conduct. The officer testified that since he had never had any prior dealings with the Defendant, and since he was alone No~ 98-0377 CRIMINAL at 2:00 in the morning, he conducted the pat down search and placed the Defendant in the patrol vehicle for safety purposes. In Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043 (1995) our Supreme Court recognized and described the three levels of interaction between citizens and the police. The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally, an arrest or "custodial detention" must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992). Com. v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047-48 (1995)(footnote omitted). We must first determine whether we are dealing with an arrest or a detention. If it is an arrest, and it is lawfial, there is no question that the officer had the fight to search the Defendant. Com. v. Rehmeyer, 349 Pa. Super. 176, 502 A.2d 1332 (1985). However, since the Defendant was detained merely for the iSsuance of a disorderly conduct citation, those facts, without more, do not justify an arrest.~ Obviously, the officer had the authority to detain the Defendant for the purpose of obtaining information to issue the citation. The question then becomes whether the officer had ~Pa. Rule of Criminal Procedure 51 prohibits an arrest in a summary offense unless it is specifically authorized by law. Section 8902 of the Judicial Code does authorize an arrest for the summary offense of disorderly conduct only if"there is ongoing conduct that imperils the personal security of any person or endangers public or private property." We cannot say that there was such conduct in the instant case. No. 98-0377 CRIMINAL the authority to conduct a pat down search. Our Pennsylvania Supreme Court has long recognized that an officer may conduct a pat down search of one who is lawfully detained if "the policeman may reasonably conclude ... that the person with whom he is dealing may be armed and dangerous." Com. v. Berrios, 437 Pa. 338, 341,263 A.2d 342, 343 (1970). In Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996) our Supreme Court reiterated that a police officer who is "reasonably concerned" for his safety may conduct a pat down search for weapons. In the instant case, this Court has no hesitation concluding that Officer Dale was (and should have been) reasonably concerned for his safety when he detained the Defendant for the purpose of issuing a disorderly conduct citation. It was 2:00A. M., the officer was alone, and he did not know the Defendant. It is certainly reasonable for him to want to make sure that the Defendant did not ha~e a weapon before he turned his attention to writing a citation. However, defense counsel has drawn our attention to the recent case of In re S.J., No. 24 E.D. Appeal Docket 1996 (Pa. Supreme, May 19, 1998). In that case, our Supreme Court held that the officer could not conduct a pat down search during an investigative detention unless he has "specific, articulable facts establishing that [the suspect] was armed and dangerous." Id. at 6- 7. Regrettably, we are unable to distinguish the facts before us from the facts in S.J. In S.J. the officer, working alone, approached a large group of young men who he had seen smoking marijuana. While the investigative detention was appropriate, the Court held that the pat down No. 98-0377 CRIMINAL search was not2, even though the encounter took place in a high crime area.5 Based upon the decision of the Pennsylvania Supreme Court in In re S.J. we have no alternative but to grant the Defendant's Motion to Suppress. ORDER AND NOW, this oO~ day of JULY, 1998, after hearing, the Defendant's Motion to Suppress is GRANTED and the Commonwealth is precluded fi'om introducing at trial the marijuana found on the Defendant. By the Court, /s/Edward E. Guido, J. Edward E. Guido, J. Jon Birbeck, Esq. Attorney for the Commonwealth Michael Ferguson, Law Clerk Ellen K. Berry, Esq. First Assistant Public Defender 2Justices Cappy and Castille dissented from this portion of the opinion. They felt that the facts "provided sufficient reasonable suspicion to justify the frisk of Appellant for the safety of the officer." (See Concurring and Dissenting Opinion of Mr. Justice Cappy, p. 3-4). 3In the instant case, West High Street in the Borough of Carlisle cannot even be categorized as a high crime area.