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HomeMy WebLinkAbout99-1224 criminalCOMMONWEALTH VS. · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · o AARON T. MCCULLOUGH ·NO. 99-1224 CRIMINAL TERM · , IN RE' DEFENDANT'S OMNIBUS PRETRIAL MOTION_ BEFORE GUIDO, J. OPINION AND ORDER OF COURT AND NOW, this .. day of SEPTEMBER, 1999, for the reasons set forth in the attached opinion Defendant's Motion to Suppress is GRANTED. The Commonwealth is precluded frotn introducing at trial the stereo or any other evidence obtained from the vehicle. By the Edward E. Guido, J. District Attorney Lenora M. Smith, Esquire For the Defendant 'sld EZ COMMONWEALTH VS. AARON T. MCCULLOUGH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ' NO. 99-1224 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The matter before us is Defendant's Omnibus Pretrial Motion in the nature of a Motion to Suppress evidence. An evidentiary heating was held on August 25, 1999. We make the following findings of fact and conclusions of law as required by Pa. Rule of Criminal Procedure 323(i). FINDINGS OF FACT On April 26, 1999, at approximately 2'00 p.m. the vehicle being operated by the Defendant was stopped by Camp Hill Police Officer Hockenberry to investigate a violation of Section 4524(e) of the Vehicle Code~which deals with excessive window tint. Since the department's only tint measuring device was in Officer Pryor's patrol car, he was called to the scene to assist. Both officers noticed that the Defendant appeared to be acting nervously. The Defendant supplied his license and the vehicle registration. While the vehicle was registered to someone else, everything appeared to be in order. Officer Pryor has experience with the Cumberland County Drug Task Force. He noticed a strong smell of air freshener coming from the vehicle. According to the officer, ~ 75 Pa.C.S.A. § 4524(e) NO. 99-1224 CRIMINAL TERM air fresheners are sometimes used in a vehicle to mask the odor of drugs. The tint measuring device confirmed that the windows were in violation of the vehicle code. As Officer Hockenberry retired to his patrol vehicle to complete the paperwork necessary to issue a warning, Officer Pryor began to question the Defendant. During the questioning, Officer Pryor noticed an unattached car stereo sitting on the back floor.2 The stereo had a removable face unit whidh was not present. When he asked the Defendant why the stereo was in the back seat, the Defendant responded that it belonged to his friend Tim. The officer tried to obtain more information regarding Tim, including his last name and phone number. The Defendant stated that he did not have that information since he only knew Tim from the streets of Harrisburg. Then, inexplicably, the Defendant said he did not want the stereo and gave it to the officer. Upon close examination of the stereo, the officer noticed that the serial number had been removed, making it difficult to trace ownership. The officer then accused the Defendant of lying about Tim. The Defendant admitted that Tim did not exist and that he did not know whose stereo it was. At that point Officer Hockenberry returned and gave the Defendant the warning citation. After he received the warning, the Defendant was asked to allow the officers to search the vehicle.3 He refused. The officers then called the owner of the vehicle to inquire about the stereo and to request permission to search the vehicle. She denied any knowledge of the stereo. She also denied permission to search the vehicle. 2 The vehicle had its own attached and operable stereo on the dashboard. 3 Officer Pryor testified that he wanted to see if there was anything else in the vehicle to allow him to determine whether or not the stereo was stolen. NO. 99-1224 CRIMINAL TERM After speaking with the owner, the officers decided to seize the vehicle. They called a cab for the Defendant and sent him on his way. They then prepared the paperwork to obtain a search warrant for the vehicle. The probable cause for the warrant contains basically the facts as set forth above. Upon searching the vehicle, they found, inter alia, the drugs which form the basis of these charges. CONCLUSIONS OF LAW (1) The initial stop of Defendant's vehicle was appropriate. (2) The questioning of Defendant regarding anything other than information related to the traffic stop was not supported by reasonable suspicion that criminal activity was afoot. (3) The seizure of the stereo and all other items from the vehicle was improper. (4) All of the evidence obtained from the vehicle must be suppressed. DISCUSSION The Defendant concedes, as he must, that the initial stop of his vehicle was proper. Since the officer had a reasonable and articulable suspicion that the window tint was in violation of the vehicle code, he was authorized to perform an investigatory stop. 75 Pa. C.S.A. {} 6308. However, citing Com. v. Lopez, 415 Pa. Super. 252 609 A.2d 177, (1992), appeal denied 533 Pa. 598, 617 A.2d 1273, Defendant argues that the officers had no authority to question him regarding the stereo or to search his vehicle. We agree. The Lopez case involved a routine traffic stop for a minor violation. The Superior Court held that during a routine traffic stop the officer may only "request a driver's license and vehicle registration, mn a computer check and issue a citation." (citations omitted). 609 A.2d at 181. He may not exceed that authority and expand the NO. 99-1224 CRIMINAL TERM investigation unless he has a reasonable and articulable suspicion that criminal activity is afoot.4 In the instant case, the Defendant's license and registration were in order. While the officer's intuition may have told him something was amiss, he had no articulable reason to believe that this Defendant was involved in criminal activity. At the time he expanded the investigation by questioning the Defendant about the stereo, the only objective facts pointing toward criminal activity were the Defendant's nervousness, the smell of air freshener and an unattached car stereo on the back floor.5 These circumstances are not at all inconsistent with completely innocent behavior by a law abiding citizen. Even taken together they do not give rise to an articulable and reasonable suspicion that a crime was being committed. At that point, no objective circumstances suggested that Defendant was involved in a crime more serious than driving a vehicle with excessively tinted windows. Therefore, the officer had no authority to engage in a fishing expedition or to expand the investigation into other 6 matters. 4 The Superior Court relied heavily upon the reasoning of the 10th circuit in the similar case of U.S.v. Cjuzman, 864 F.2d 1512 (10th C 1988). The Lopez Court enunciated the principle of law which controls the instant case as follows' ...(w)hen conducting a routine traffic stop, an officer may request a driver's license and vehicle registration, mn a computer check and issue a citation. 864 F.2d at 1519. See also (~ommonwealth v. Robinson, 399 Pa. Super. 199, 582 A.2d 14 (1990), appeal denied in 528 Pa. 629, 598 A.2d 282 (1991), (demand to inspect vehicle identification number is within scope of police authority pursuant to traffic violation stop). Upon producing a valid driver's license and registration, the driver must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Id. In order to justify detaining the driver for further questioning, the officer must have "reasonable suspicion 'of illegal transactions in drags or of any other serious crime'." (citation omitted) 609 A.2d at 181-182 5 He did not notice that the serial number had been removed from the stereo until he was given possession of it by the Defendant. This occurred after the investigation had been expanded and the police began questioning the Defendant about the stereo. 6 See also Commonwealth v, Hoak, 700 A.2d 1263 (Pa. Super. 1997). , NO. 99-1224 CRIMINAL TERM Consequently, any evidence obtained after the investigation was improperly expanded must be suppressed.7 ORDER AND NOW, this 21 sx day of SEPTEMBER, 1999, for the reasons set forth in the attached opinion Defendant's Motion to Suppress is GRANTED. The Commonwealth is precluded from introducing at trial the stereo or any other evidence obtained from the vehicle. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney Lenora M. Smith, Esquire For the Defendant 'sld 7 Since the Lopez case requires us to suppress any evidence obtained after the improper questioning began we need not address the issue of whether or not the officers had probable cause to seize and subsequently search the vehicle.