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HomeMy WebLinkAbout99-1589 criminalCOMMONWEALT}I Vo JESSICA LYNN MYERS AND NOW, this i:< q tIE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : ' NO. 99-i589 CRIMINAL TERM : : : IN RE' OMNIBUS PR_ETRIAL MOTION B E F O R'~_;._G__[ [~_D O_~O_,~J. OPINION AND ORDER OF COURT _ day of JANUARY, 2000, the relief requested in Defendant's Omnibus Pretrial Motion is DENIED. By the Court, Edward E. Guido, J. Michael Ferguson, Esquire For the Commonwealth Paul B. Orr, Esquire For the Defendant William Braught, Esquire For the Co-defendant 'sld COMMONWEALTH Vo JESSICA LYNN MYERS · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : ' 99-1589 CRIMINAL TERM : : IN RE' OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J: OPINION AND ORDER OF COURT The Defendant has filed an Omnibus Pretrial Motion in which she makes various claims for relief. She alleges that her initial detention was unlawful. She further alleges that the search of her vehicle as well as the search of the cooler in the trunk of that vehicle were illegal. Therefore, she requests that the evidence seized as a result of those searches be suppressed. She also requests that the charges against her be dismissed or, in the alternative, that she be tried separately from her co-defendant. An evidentiary hearing on the motion was held before this Court on December 1, 1999. The parties were directed to file briefs, which they have done. This matter is now ready for disposition. FINDINGS OF FACT On July 20, 1999, North Middleton Township Police Officer James Peterson finished his shift at approximately 2:00 a.m.. He changed into his street clothes, got into his private vehicle, and headed for home. 99-1589 CRIMINAL TERM While on the way home, the officer noticed a car turn off its lights as it pulled into a used car lot.~ The officer was suspicious, especially since there had been a recent burglary at that particular lot. He stopped his car and returned on foot to the vicinity of the car lot. He took up a position behind a tree where he could observe what was going on without being seen. He observed two occupants from the vehicle walking around the cars. Despite the fact that the area was very dark, they were not using a flashlight, nor were they using the light from the vehicle.2 It was too dark for the officer to tell what was going on, although he suspected that a burglary, theft or criminal mischief might be in progress. Officer Peterson used his hand held radio to request assistance from both the North Middleton and Carlisle Police Departments. Carlisle Officer Jeffrey Kurtz was the first to arrive on scene. He arrived with his emergency lights flashing within in a minute of receiving Patrolman Peterson's call. All other units, including North Middleton Township Officer Castle, arrived on scene within five minutes of the initial call. Patrolman Peterson left the scene as soon as Patrolman Castle arrived. As Officer Kurtz arrived, the Defendant and her co-defendant returned to the vehicle, started the engine, and were preparing to leave. Defendant was in the passenger seat. The officer directed the co-defendant to shut off the engine. He further asked him to exit the vehicle so that he could be questioned. Officer Kurtz obtained the co- defendant's driver's license and asked why he was in the lot. After speaking to the co- defendant, he approached the Defendant and requested that she get out of the car. He ~ The car lot is located in North Middleton Township. 2 This obviously added to the officer's suspicions. He testified that he was only fifteen feet from the Defendants, yet, because it was so dark, he could not even tell if they were male or female. 99-1589 CRIMINAL TERM obtained her driver's license and qu-e(~tioned her. Both Defendants indicated that they were there looking for a used cqr. While questioning tl.tc l)efe~dant, the officer shined his flashlight into the car. He noticed a digital scale on the left rear seat as well as empty beer bottles in the back seat. Defendant was under the age of twenty-one. OW.'.ccr Kurtz questioned her regarding the 3 She beer bottles. She indicated that the beer bottles beio~:ged to co-defendant Alamo. also indicated that, although the car was registered to [)oth her and her father, it belonged to her. For some unexplained reason, and without being asked, she offered to allow Officer Kurtz to search the rest of the car.' i-lc accepted her offer. All of this took place while the officer was waiting for his dispatcher to run the registration on the vehicle. Instead of searching right away, the 0 fficer returned to his vehicle for the results of the registration check as well as to run information checks on the identities of both Defendants. He wanted to determine if there were any outstanding warrants on either of them. While he was running the information checks, Defendant offered to allow Officer Castle to search the vehicle. He was aware of the previous offer made to Officer Kurtz and indicated that they would be conducting the search. Officer Kurtz returned with the drivers' licenses and gave them to Officer Castle. Both police officers then began to search the car. Officer Castle searched the front seat and found some marijuana on the floor. He also found drug paraphernalia. Officer Kurtz opened the trunk. He found a large cooler which he proceeded to open. Inside the cooler 3 Co-defendant Alamo was over twenty-one. 4 We find the officer's testimony in this regard to be credible. Logical explanations for her consent include her naievite or the belief that nothing incriminating would be found. As noted below, the co-defendant later acknowledged that the drugs which were eventually found belonged to him and were placed in the vehicle without the Defendant's knowledge. 99-1589 CRIMINAL TERM was a brown garbage bag which contained a large quantity of Both Defendants were placed under arrest and take~ to ~l~.c '5.1 ::;:~'i-h Middleton Township Police Station. While at the station the.,...' xve~'c S.',:e~ their _Miranda ,,~,'arnings. Both Defendants refused to talk to the police without their attorneys being present. They were then transported to the Central Booking Center for processing. k.~.! ta,n While at the Central Booking Center, co-defendant Alamo was asked .... biographical questions and preliminarily arraigned on video camera. At some point after the arraignment he was given the opportunity to use the telephone. On the way to the telephone he noticed that the Defendant, his girlfriend, was crying. At tlx:~.t point, volunteered to Booking Agent Gross that the drugs in the vehicle belonged to him. He further indicated that they were placed there without the knowledge of Defendant. DISCUSSION Initial Stop Of Defendants. The initial encounter between Officer Kurtz and the Defendants was an investigative stop. See Commonwealth v. Ellis, 541 Pa. 285,662 A.2d 1043 (1995). The Pennsylvania Supreme Court has summarized the rationale and standards for an investigative stop as follows' In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), the United States Supreme Court recognized that certain investigative seizures of an individual need not be supported by probable cause. In Tero', the Court held that a stop for investigatory purposes is justified if the police officer observes unusual conduct which leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884. The officer must be able to point to specific and articulable facts which give rise to a reasonable suspicion of criminal activity. Id. at 21-22, 88 S.Ct. at 1879'-81. In Commonwealth v. Lovette, 498 Pa. 665,450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed. 2d 1025 (1983), this Court stated that Terry and its Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694 (1966). 99-1589 CRIMINAL TERM progeny recognize "that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as the police have an articulable basis for suspecting criminal activity." Com~nonwealth v. Lovette, 498 Pa. at 673,450 A.2d at 979 (1982), quoting Michigan v. Summers, 452 U,S. 692, 699, 101 S.Ct. 2587, 2592, 69 L.Ed. 2d 340 (1981). C.on!rnonwealth v. DeWig, 530 Pa. 299, 608 A.2d 1030, 1033-1034, (1992). Reasonable suspicion, although less then probable cause, must be more than a mere hunch. C~_ommonwealth v. Vasquez, 703 A.2d 25 (Pa. Super. 1997). In the instant case we are satisfied that Officer Petersen acted appropriately in directing the investigative detention of the Defendants. Based upon his experience he had a reasonable suspicion that the Defendants may be involved in criminal activity, including burglary, theft or criminal mischief. Furthermore, the suspicion was more than a mere hunch. It was based upon specific and articulable facts. At 2'30 a.m. the headlights were shut off as Defendant's vehicle was turning into a used car lot. The location had recently been burglarized. The officer observed the Defendants walking around the cars on a very dark night without any source of light.6 Under those circumStances, not only was the officer justified in initiating an investigative stop, he 7 would have been derelict in his duties had he not done so. 6 He could reasonably infer that they did not want to be noticed. 7 The Defendant has cited Commonwealth v. DeWitt., supra, in support of her position that the investigative stop was not justified. However, the facts in DeWitt are distinguishable from the facts in the case at bar. In DeWitt the officer noticed a parked car with its headlights off but dome light on. As he approached the car the occupants shut the dome light off and acted suspiciously. The Court held that the officer did not have a reasonable suspicion supported by specific and articulable facts that criminal activity may have been taking place. We submit that the actions of the occupants of the DcWitt. vehicle were consistent with any number of lawful activities. Whereas, in the current case, while it is possible that the Defendants merely wanted to shop for a used car, it is highly improbable that they would do so at 2:30 a.m. in complete darkness. 99-1 'rS'c: tT'N.~'vl!NAL TERM Searci~ (.)f 'i'iie Vehicle. !'!:~-~ De.~bnda::t next argues that the search of the vehicle was unlawful. We disagree. The search was conducted pursuant to a valid consent given by the Defendant.. As the Pennsylvania Supreme Court has noted: Under both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, a search such as that at issue here, which is conducted without a warrant, is deemed to be pet' se unreasonable. Certain specifically established exceptions, one of which is a valid cot~se:..n may, however, render an otherwise illegal search permissible. It is the state's burden to prove consent. This court, as well as the United States Supreme Court, has long adhered to the principle that for purposes of the Four:!~ ;~mendment, consent must have been given voluntarily. (citations o~'nitted) Commonwealth v. Cleck!ey, 738 A.2d 427, 429 (Pa. 1999). To be valid the cOnsent to search must be voluntarily given and not the result of coercion or duress. Commonwealth v. Cleckley, at 430. The voluntary nature of the consent is a question of fact to be determined frown the totality of the circumstances. /d. In the case before us we have no doubt that the consent to search was voluntarily given. As part of the investigative process Officer Kurtz determined that the vehicle was registered to the Defendant and her father. However, the Defendant indicated that the car belonged to her. Without being asked, she volunteered to allow the officers to search the car, which they did. There was no police coercion. There was not even a request. Clearly, the offer to search was voluntary and the search was proper. 99-1589 CRIMINAL TERM Search Of The Cooler. The Defendant goes on to argue that, even if volunta~ il,,'. ._,.~'i'., ,:..:a... .... :: consent to search the vehicle did not include the cooler in the trunk e.l' ~i:e vehicle. This issue is factually similar to the issue addressed by the Pennsylvania Supreme Court in Commonwealth v.. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996). In _Abdul-Salaa~_ ~__ n, the Defendant's girlfriend gave the police authority to search her apartment fo:-~.: handgun and clothing. They found a briefcase in her bedroom closet. Mr. Abdul Salaam argued that the consent to search the apartment did not include a consent to search tl~e briefcase. The Supreme Court disagreed. It held that the scope of a search ordinarily cncompa, sses the entire area where an object may be found and "properly includes the opening and inspection of containers and other receptacles where the object may bc secreted." Commonwealth v. Abdul-Salaam, 678 A.2d at 352, quoting _Commonw~e2._lth v. Rees_e, 520 Pa. 29, 33,549 A.2d 909, 911 (1988), which quotes Unites States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed 2d 572 (1982). In the instant case, the consent to search was not limited in any way by the Defendant. If she had limited it to a search for drugs, or some other specific item, it is clear that the officers could have opened and searched the cooler. It is illogical to assume that the officers could search the cooler if the consent had been limited to a search for drugs but could not open it where the scope of the search was not limited. In the alternative, the officers were aware of metric scales as well as drug paraphernalia and marijuana residue in the vehicle. It is certainly reasonable to suspect ~hat additional drugs may have been in the cooler. Therefore, it was properly searched. 99-1589 CRIMINAL TERM Finally, Defendant argues that the cooler did not belong to her. Therefore, she was not authorized to consent to its search. The decision in Abdul-$alaam, supra, provides guidance on this issue as well. Mr. Abdul-Salaam argued that his gi~'lfrie~i not have authority to consent to a search of the briefcase since it belonged to him. The Supreme Court rejected the argument and upheld the trial court's refusal to suppress the evidence found in the briefcase. It reasoned as follows' The trial court found credible the testimony that the police officer who discovered the briefcase did not know to whom the briefcase belonged before he opened it and that Ms. Reeves said nothing about the search of the briefcase. The trial court went on to state that even if Ms. Reeves did inform the police that the briefcase was not hers, which version the court rejected, such a disclaimer of ownership occurred after the police examined the contents of the briefcase. The trial court's determination is supported by Ms. Reeses' own testimony that when she informed the police that the briefcase was not hers, a police officer was already removing items from the briefcase. (citations to the record omitted) 678 A.2d 342, at 351. Applying the above reasoning to the facts before us, we must also reject Defendant's argument on this issue. The police had no reason to believe that the cooler did not belong to her. It was in her car and neither party said it did not belong to her. Furthermore, the co-defendant did not claim ownership of it until much later at the booking center. Under those circumstances, the search of the cooler and seizure of its contents was appropriate. Motions To Dismiss And To Sever. Defendant requests that we dismiss the charges against her because the co- defendant has admitted that the marijuana seized from the cooler belonged to him and that Defendant was not aware of its presence. In the alternative she asks that she be tried 99-158a. _., Ci~,t M IN AI,_ ,~.. TERM separa~c~'3., 15'ot:~ her co-defendant. We assume that she has abandoned those issues since she c!~::! t':~-~t' ~_:.i~.~.ress them in her brief.8 In any event, they are without merit. ORDER OF COURT AND NOW, this !3TM day of JANUARY, 200'0, the relief requested in Defendant's Omnibus Pretrial Motion is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Michael Ferguson, Esquire For the Commonwealth Paul B. Orr, Esquire For the Defendant William Braught, Esquire For the Co-defendant :sld 8 See Local Rule 210-7.