HomeMy WebLinkAboutCP-21-CR-0000228-2019
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MORGAN LEIGH FROMBAUGH : CP-21-CR-0228-2019
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION
OPINION AND ORDER OF COURT
Masland, J., June , 2020:--
On September 29, 2018, Defendant Morgan Leigh Frombaugh parked her
vehicle on Hanover Street, Carlisle and opened her door, prompting a collision with a
passing bicyclist. The police arrived at the scene of the accident and began their
investigation, in the course of which they searched Defendant’s vehicle and discovered
what they believed to be illegal drugs and paraphernalia. Defendant was arrested and
charged with several drug-related offenses, as well as two offenses arising from the
collision itself: Recklessly Endangering Another Person (M2) and Aggravated Assault by
Vehicle (F3). At Defendant’s preliminary hearing, the court bound over all charges,
except Driving Under the Influence, for which the Commonwealth had failed to establish
a prima facie case. Prior to the hearing on this motion, the Commonwealth voluntarily
withdrew the more serious of the collision-related charges, conceding it could not
present a prima facie case.
Before us now is Defendant’s Omnibus Pretrial Motion, in which Defendant
contends (a) that the Commonwealth failed to establish a prima face case for the
charge of Recklessly Endangering Another Person and (b) that the searches of
Defendant’s vehicle and of the phones found therein were defective and evidence
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arising therefrom should be suppressed. For reasons explained below, we will grant
Defendant’s motion to dismiss the charge of Recklessly Endangering Another Person,
grant Defendant’s suppression motion relating to the phones, and deny Defendant’s
suppression motion relating to the vehicle.
DISCUSSION
A. Recklessly Endangering Another Person
A person commits this offense who “recklessly engages in conduct which
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places…another person in danger of…serious bodily injury.” It is undisputed that
Defendant’s conduct caused serious bodily injury to another person; a fortiori,
Defendant’s conduct placed that person in danger of serious bodily injury. The only
question before us is whether Defendant’s conduct was reckless: i.e. undertaken in
conscious disregard of a substantial and unjustifiable risk, so as to constitute a gross
2
deviation from the standard of conduct of a reasonable person.
The Commonwealth has provided no direct evidence that Defendant consciously
disregarded the risk in question. For example, there is no testimony that Defendant was
seen looking out her window in the direction of the bicyclist prior to opening her car
door. Instead, the Commonwealth invites us to draw an inference of recklessness from
the general circumstances of the collision: i.e. to find that the risk was so obvious that
Defendant simply must have known of and consciously disregarded it. In Huggins, our
Supreme Court made such an inference in relation to a motorist who caused a collision
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by falling asleep at the wheel. The court reasoned that the defendant must have been
1
18 Pa.C.S. §2705.
2
Id. at §302(b)(3).
3
Commonwealth v. Huggins, 836 A2.d 862 (Pa. 2003).
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aware of the risk because “it is common knowledge that sleep is preceded by some
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internal warning.” We find the facts of the case sub judice readily distinguishable. If
every living person has a rich store of experience relating to sleep and the signs and
symptoms of its impending arrival, very few of us have had any experience which would
cause us to associate the mundane act of opening a car door with serious risk of bodily
injury to another person. In short, the circumstances of this case do not allow for a
reasonable inference that Defendant consciously disregarded the risk in question, nor is
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there direct evidence of the same, and so the charge will be dismissed.
B. Warrantless Search of Defendant’s Vehicle
Under both the Pennsylvania and federal constitutions, the general rule that
police must obtain a warrant from a neutral magistrate prior to conducting a search is
subject to several exceptions, prominent among them being the automobile exception.
The exact contours of this exception have evolved over the decades, during which time
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state and federal jurisprudence have sometimes diverged. However, in recent years,
our Supreme Court has simplified matters by explicitly adopting the federal rule: i.e. that
a warrantless search of a vehicle is constitutionally acceptable provided that the police
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have probable cause.
4
Id. at 869.
5
See also Commonwealth v. Heck, 491 A.2d 212 (Pa. Super. 1985) (court declines to find even criminal
negligence where motorist causes collision by failing to yield to oncoming traffic while making a left turn at
an intersection, and where there was an absence of direct evidence that motorist saw the vehicle with
which it collided) and Commonwealth v. Stosny, 31 A.2d 582, 584 (Pa. Super 1943) (“the mere
happening of the accident does not prove that appellant was even slightly negligent”).
6
For a discussion of this complex history, See Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014).
7
Id. at 104 (“we adopt the federal automobile exception to the warrant requirement, which allows police
officers to search a motor vehicle when there is probable cause to do so and does not require any
exigency beyond the inherent mobility of a motor vehicle”) (plurality opinion). See also Commonwealth v.
Loughnane, 173 A.3d 733, 735 (Pa. 2017) (“the federal automobile exception \[was\] adopted by this Court
in Commonwealth v. Gary”).
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The parties’ arguments in the case sub judice focus in large part on a dispute of
fact. The Commonwealth contends that Defendant opened the passenger’s side door of
her vehicle, thereby releasing the odor of marijuana that prompted Officer Saum to
begin his search. Defendant objects that it was Officer Saum who acted first, opening
the driver’s side door prior to any possible release of the odor of marijuana, and so the
search was launched without probable cause. We find it unnecessary to resolve this
dispute. Even if we were to adopt Defendant’s version of the facts, we would find that
Officer Saum had probable cause to believe that an inspection of the interior of the front
driver’s side door would disclose evidence relating to the collision and to possible
criminal offenses connected therewith. Upon opening that door, the odor of marijuana
that greeted the Officer provided further probable cause, if such were needed, for a
search of the passenger compartment, in which were discovered the items of evidence
that Defendant now seeks to suppress.
Defendant relies on Johnson, an unreported opinion, to support her contention
8
that the odor of marijuana alone does not give rise to probable cause. However, the
Johnson court itself acknowledged precedent establishing that “an odor \[of
marijuana\] may be sufficient to establish probable cause for a search of an automobile,
which had been legitimately stopped for an unrelated vehicle code violation” (emphasis
9
in original). Further, Johnson is readily distinguishable. Here, an odor of marijuana
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was not the sole basis for probable cause and there is no question that the police had
a legitimate interest in Defendant’s vehicle, given the collision which set these events
8
Commonwealth v. Johnson, 2016 WL 6876317 (Pa. Super. 2016).
8
Id. at 4, citing Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa. Super. 1998).
10
Apart from the collision itself, Officer Saum described Defendant as having had “pinpoint eyes.”
Transcript of Preliminary Hearing, 26:11-12.
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into motion. Accordingly, we deny Defendant’s Motion to Suppress with respect to the
vehicle.
C. Search Warrants For Defendant’s Cell Phones
Finally, Defendant contends that the warrants purporting to authorize the
searches of the several cell phones discovered in Defendant’s vehicle were defective
for lack of probable cause and for being overbroad. As to probable cause, the affidavits
attached to each warrant reveal, inter alia, that the police discovered, either in
Defendant’s vehicle or on her person, either at the scene of the accident or during
processing at the Cumberland County Prison, (a) at least five cell phones, (b) a large
amount of cash, (c) four credit or debit cards issued to persons other than Defendant,
(d) one state ID card issued to a person other than Defendant, and (e) several samples
of illegal drugs, including a fairly large quantity of marijuana. These facts provide
probable cause for a reasonable person to believe that the cell phones contained
evidence of a crime, specifically, the sale of illegal drugs.
As to overbreadth, Defendant cites Orie in support of the proposition that a
warrant is defective where it purports to authorize the search of all files contained within
an electronic device “without limitation to account for any non-criminal use of the
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\[electronic device\].” In Orie, the warrant purported to grant the police the authority to
search “any contents \[of the electronic device\], including all documents, images,
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recordings, spreadsheets or any other data stored in digital format.” Despite evidence
that the police were investigating particular crimes, and not merely rummaging for any
evidence of any crime, the absence of limiting language in the relevant field of the
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Commonwealth v. Orie, 88 A.2d 983, 1009 (Pa Super. 2014).
12
Id.
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warrant itself led the court to find the warrant overbroad. The court has applied a less
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exacting standard in relation to investigations of large-scale criminal enterprises, but
Defendant’s drug-related activities, if such there be, do not appear to rise to that level.
Therefore, we will employ the ordinary standard. Each warrant for each of Defendant’s
phones purports to authorize the search of “any and all data within to include, but not
limited to, text messages, call logs, voicemails, social media posts, photographs, video
and audio recordings for analysis.” As in Orie, there is no limitation to account for non-
criminal use of the phones, and so the warrants were overbroad, the searches illegal,
and any evidence arising therefrom must be suppressed.
ORDER OF COURT
AND NOW, this day of June, 2020, following a hearing, argument and
briefing on Defendant’s Omnibus Pretrial Motion, we ORDER AND DIRECT as follows:
1. Defendant’s Petition for Habeas Corpus Relief is GRANTED and Count 9
Recklessly Endangering Another Person is DISMISSED.
2. Defendant’s Motion to Suppress with respect to the vehicle is DENIED.
3. Defendant’s Motion to Suppress with respect to the phones is GRANTED.
By the Court,
Albert H. Masland, J.
13
Commonwealth v. Iannelli, 634 A.2d 1120 (Pa. Super 1993).
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Nicole Vito, Esquire
For the Commonwealth
John M. Arose, Esquire
Killian & Gephart, LLP
2018 Pine Street
P.O. Box 886
Harrisburg, PA, 17108
For Defendant
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MORGAN LEIGH FROMBAUGH : CP-21-CR-0228-2019
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION
ORDER OF COURT
AND NOW, this day of June, 2020, following a hearing, argument and
briefing on Defendant’s Omnibus Pretrial Motion, we ORDER AND DIRECT as follows:
4. Defendant’s Petition for Habeas Corpus Relief is GRANTED and Count 9
Recklessly Endangering Another Person is DISMISSED.
5. Defendant’s Motion to Suppress with respect to the vehicle is DENIED.
6. Defendant’s Motion to Suppress with respect to the phones is GRANTED.
By the Court,
Albert H. Masland, J.
Nicole Vito, Esquire
For the Commonwealth
John M. Arose, Esquire
Killian & Gephart, LLP
2018 Pine Street
P.O. Box 886
Harrisburg, PA, 17108
For Defendant