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HomeMy WebLinkAbout98-2397 criminalCOMMONWEALTH Ve ALAN JOSEPH ROBICHAUD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2397 CRIMINAL TERM IN RE_: DEFENDANT' S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. AND NOW, this ORDER OF COURT .... day of MAY, 1999, for the reasons set forth in the attached opinion Defendant's Motion to Suppress Evidence obtained in the pat down search of his person is GRANTED and the drug paraphernalia seized pursuant to said search is SUPPRESSED. By t Edward E. Guido, J. District Attorney Timothy L. Clawges, Esquire For the Defendant :sld COMMONWEALTH V, ALAN JOSEPH ROBICHAUD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2397 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The Defendant filed an Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence. He alleges 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 hearing on said motion was held before this Court on April 27, 1999. Pursuant to Pa. Rule of Criminal Procedure 323(i) we make the findings of fact and conclusions of law which follow. For the reasons hereinafter set forth, we feel compelled to grant Defendant's Motion to Suppress. FINDINGS OF FACT 1) On September 11, 1998 at approximately 11:30 p.m. Patrolman Jeffrey Kurtz of the Carlisle Police was on routine foot patrol in plain clothes. 2) As he was standing in an alley behind the Courthouse, he noticed a man coming out of the back door of a local tavern with an open container of beer. NO. 98-2397 CRIMINAL TERM 3) As the officer approached that man, the Defendant, exited the tavern and began to urinate in the alley within five (5) feet of the officer. 4) Their were several other unknown male individuals in the alley at that time. 5) The officer approached the Defendant, identified himself, and asked for identification from the Defendant. 6) The Defendant produced his driver's license. 7) The officer did not intend to arrest the Defendant. He merely intended to issue a citation for disorderly conduct. 8) The officer asked the Defendant to move into a more well lighted area where he proceeded to conduct a pat down search for weapons. 9) The officer indicated that he conducted the pat down search for his safety because he did not know the Defendant, did not know what he might be carrying, and did not know the other males in the area. 10) The officer did not articulate any specific facts which could lead him to believe that the Defendant was armed. 11) The officer was reasonably concerned for his safety. 12) The officer felt a hard metal cylindrical item in the Defendant's front pocket. 13) The officer was satisfied that the object was not a weapon. However, based upon his training and experience, he thought that it was a pipe commonly used to smoke marijuana. NO. 98-2397 CRIMINAL TERM 14) The officer retrieved the marijuana pipe from Defendant's pocket. 15) The Defendant was subsequently arrested and processed for the summary offense of disorderly conduct and the misdemeanor offense of possession of drug paraphernalia. 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 detention. (4) The marijuana pipe 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 prior to the issuance of a citation for disorderly conduct. The officer testified that since he never had any prior dealings with the Defendant, and since he was alone at 11:30 at night, he conducted the pat down search 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 NO. 98-2397 CRIMINAL TERM 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. McCart¥, 468 U.S. 4~, 104 S.Ct. 3138, 82 L.Ed. 2d 317 (1984); Terry v. O~~,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, 60L.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 lawful, there is no question that the officer had the right 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. ~ Therefore, we are dealing with a detention. Obviously, the officer had the authority to detain the Defendant for the purpose of obtaining information to issue the ~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 authorizes 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. 98-2397 CRIMINAL TERM citation. Th'e question then becomes whether the officer had 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 Kurtz 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 11:30 p.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 have a weapon before he turned his attention to writing a citation. ~ However, defense counsel has drawn our attention to the recent Pennsylvania Supreme Court case of In re S.J. 551 Pa. 637, 713 A.2d 45 (1998). In that case the officer, working alone 2It would be foolhardy to confront a stranger in a dark alley behind a bar and issue him a summary citation without conducting a pat down search for weapons. NO. 98-2397 CRIMINAL TERM after dark, approached S.J. who was part of a large group of young men who he had seen smoking marijuana. The Supreme Court held that the investigative detention of S.J. was appropriate. However, it held that the pat down search was not, even though the encounter took place in a high crime area.3 The Court reasoned as follows: The record herein is devoid of any evidence indicating that Officer Kelly had reason to believe Appellant was armed and dangerous. There was no testimony that Appellant's clothing had any unusual bulges or any testimony that Appellant made any furtive movements giving rise to Officer Kelly's suspicions that Appellant was armed and dangerous. The Officer's statement that he Patted Appellant down for his own safety does not rise to the level of particularized or reasonable suspicion that the Appellant was armed and dangerous. The absence of any specific, articulable facts establishing that Appellant was armed and dangerous renders the frisk unlawful. (emphasis added)~ The above language requires us to focus on the appearance and conduct of the suspect rather than all of the circumstances surrounding the encounter. This is truly unfortunate. It presents the officer, in situations such as the case at bar, with the difficult choice of ignoring obvious petty criminal conduct, or placing his life in danger. Unless and until the suspect's 3In the instant case, we cannot categorize the area of encounter as a high crime area. ~JUstices 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). NO. 98-2397 CRIMINAL TERM actions or appearance justify a frisk, it is not authorized, no matter what the officer's common sense might tell him. When his attention is turned away from the suspect to write the citation he is, in fact, playing a form of Russian Roulette. Faced with such a choice, many seasoned officers may choose to ignore the criminal conduct. ~ · In any event, we are unable to distinguish the case before us from S.J., supra. While the officer was reasonably concerned for his own safety, he could not articulate any facts establishing that the Defendant was armed and dangerous. Therefore, we have no alternative but to grant Defendant's Motion to Suppress. ORDER OF COURT AND NOW, this 10TH day of MAY, 1999, for the reasons set forth in the attached opinion Defendant's Motion to Suppress Evidence obtained in the pat down search of his person is GRANTED and the drug paraphernalia seized pursuant to said search is SUPPRESSED. cc: District Attorney By the Court, :sld Timothy L. Clawges, Esq. For the Defendant /$/ Edward E. Guido Edward E. Guido, J. ~It is interesting to note that the officer described his duties that night as "quality of life patrol." This attempt to take back the streets from rowdies and petty criminals has little chance of success if the officer's safety must be compromised to write summary citations.