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Home My WebLink AboutCP-21-CR-1171-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SEVANNE ANTONIO HEMMINGS : CP-21-CR-1171-2007 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., August 20, 2007:-- Defendant, Sevanne Antonio Hemmings is charged with unlawful delivery or 1 manufacture or possession with intent to deliver a schedule II, controlled substance, unlawful delivery or manufacture or possession with intent to deliver a schedule I, 23 controlled substance, unlawful possession of drug paraphernalia, and resisting 4 arrest. He filed a motion to suppress evidence upon which a hearing was conducted on August 14, 2007. We find the following facts. Trooper Tony Todaro, of the Pennsylvania State Police, is assigned to a drug interdiction unit. On April 23, 2007, at 7:25 a.m., he was in uniform in a marked patrol car that was stopped beside the southbound lane of Interstate 81 in Cumberland County. A Nissan automobile passed him. Trooper Todaro could not see into the front passenger side window because it was tinted. The trooper pulled out and went into the passing southbound lane. When he caught up to the Nissan he could not see inside __________ 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(30). 3 35 P.S. § 780-113(a)(32). 4 18 Pa.C.S. § 5104. CP-21-CR-1171-2007 the driver’s passenger side window because it was tinted. He saw that the vehicle had a temporary West Virginia tag with an expiration of May 1, 2007. Trooper Todaro stopped the Nissan approximately two miles from the Plainfield exit. Defendant was driving. He had no driver’s license and no vehicle registration. He told the trooper that, as a favor for a friend, he had just picked the vehicle up in Clifton, New Jersey, and that he had gone to New Jersey to pay some tickets. Defendant showed the trooper a document with a name of the person who he said was the owner of the Nissan. The trooper had no way to determine if the registration tag was validly issued by the state of West Virginia. Defendant showed him an identification card with his name and date of birth. While talking to defendant who was in the driver’s seat, the trooper smelled an odor of burned and rolled marijuana. He asked defendant about it, and defendant said that he and a buddy had smoked some weed in the vehicle earlier that morning. The trooper went back to his patrol car and wrote out a warning. Another trooper arrived. Trooper Todaro went back to the Nissan and told defendant that he could not drive the vehicle because he had not shown that he had a valid operator’s license. He told 5 defendant to get out of the car. Defendant was not free to leave. The trooper asked defendant if he had any weapons or drugs in the vehicle. Defendant said no. At 7:44 a.m., he asked defendant if he could search the vehicle and defendant said yes. Defendant signed a written consent authorizing the trooper to search the vehicle. The trooper then searched the vehicle and recovered items which defendant seeks to -2- CP-21-CR-1171-2007 suppress from admission at trial. Defendant maintains that the stop of his vehicle was illegal; therefore, all evidence seized as a result of the stop must be suppressed. The Vehicle Code at 75 Pa.C.S. Section 4524(e)(1), provides: No person shall drive any motor vehicle with any sun screening which does not permit a person to see or view device or other material the inside of the vehicle through the windshield, side wing or side window of the vehicle 6 . (Emphasis added.) When Trooper Todaro could not see inside the front side windows of the Nissan because they were tinted, he had reasonable suspicion to believe that the vehicle was 78 being driven in violation of Section 4524(e)(1). That justified the stop. Defendant maintains that Section 4524(e)(1) is applicable only to vehicles registered in Pennsylvania and enforcement of that Section against him when he was driving a vehicle registered in West Virginia violates the Federal Constitution. This position is without merit. The conduct prohibited by Section 4524(e)(1) is not an inspection 5 It is illegal to walk on Interstate 81. 6 The statute sets out some exemptions not applicable to passenger cars. 7 The Vehicle Code at 75 Pa.C.S. § 6308(b) provides that whenever a police officer . . . has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle . . . to secure such other information as the officer may reasonably Commonwealth v. believe to be necessary to enforce the provisions of this title. See Little, 903 A.2d 1269 (Pa. Super. 2006). Trooper Todaro also had probable cause, i.e., articulable and reasonable grounds, to believe that defendant was driving in violation of Section 4524(e)(1). 8 Commonwealth v. By, See 812 A.2d 1250 (Pa. Super. 2002). -3- CP-21-CR-1171-2007 9 violation. While the Nissan on which there was a temporary West Virginia registration tag did not have to be inspected or registered in Pennsylvania in order to be driven 10 here, Section 4524(e)(1) of the Vehicle Code is applicable to all vehicles driven in Pennsylvania. Whether the Nissan, because of tinting that does not permit a person to see or view the inside, could be lawfully driven in West Virginia or any other state does 11 not involve its registration. The Federal Constitution does not ban Trooper Todaro from stopping defendant based upon reasonable suspicion that he was violating __________ 9 In Pennsylvania, the regulations of the Department of Transportation, which are applicable to vehicles that are subject to a periodic safety inspection in this state, provide that acceptable light transmittance levels for a windshield and other windows in a passenger car is 70 percent. 67 Pa. Code §§ 175.261-175.265, Table X. 10 The Vehicle Code at 75 Pa.C.S. § 1303(a), provides: General rule.—A nonresident ownerof any foreign vehiclemay operatethe vehicle within this or permit the operation of Commonwealth without registering the vehicle in this Commonwealth or paying any fees to the Commonwealth, provided the vehicle at all times when operated in this Commonwealth is duly registered and in full compliance with the registration requirements of the place of residence of the owner . . . (Emphasis added.) 11 The West Virginia Code at § 17C-15-36 provides: (a) no person may operate a motor vehicle that is registered or required to be registered in the state on any public highway, road or street that has a sun screening device on the windshield, the front side wings and side window adjacent to the right and left of the driver and windows adjacent to the rear of the driver that do not meet the requirements of this section. (c) A sun screening devices . . . . shall be a nonreflective type with reflectivity of not more than twenty percent and have a light transmission of not less than thirty-five percent. -4- CP-21-CR-1171-2007 Commonwealth v. Basto, 12 Section 4524(e)(1). See 55 Cumberland L.J. 195 (2006). Defendant seeks to suppress all evidence obtained by the police during the search of his vehicle on a claim that his consent was obtained as a result of his unlawful seizure. We do not have to analyze that claim. Once Trooper Todaro smelled marijuana coming from inside defendant’s vehicle, he had probable cause to believe that a crime was being or had been committed and that evidence of that crime would be found inside the vehicle. Thus, there was probable cause to search the Commonwealth v. Stainbrook, vehicle. See 324 Pa. Super. 410 (1984). Trooper Todaro had no prior information before he stopped defendant’s vehicle that any drug law violation had been committed. Therefore, the search, based on probable cause, was authorized without a warrant given the exigent circumstances of the movable Commonwealth v. Stewart, vehicle on Interstate 81. See 740 A.2d 712 (Pa. Super. 1999). For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2007, the motion of defendant to IS DENIED. suppress evidence, __________ 12 The Commonwealth also maintains that Trooper Todaro had reasonable grounds to believe that the Nissan was being operated without a complete and easily identifiable temporary tag sufficient to stop the vehicle. What the trooper testified he observed about the tag before he stopped the vehicle did not justify the stop upon any reasonable grounds to believe that the temporary tag was not properly issued in West Virginia and displayed on the Nissan. -5- CP-21-CR-1171-2007 By the Court, Edgar B. Bayley, J. Derek Clepper, Esquire Assistant District Attorney H. Anthony Adams, Esquire For Defendant :sal -6- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SEVANNE ANTONIO HEMMINGS : CP-21-CR-1171-2007 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this day of August, 2007, the motion of defendant to IS DENIED. suppress evidence, By the Court, Edgar B. Bayley, J. Derek Clepper, Esquire Assistant District Attorney H. Anthony Adams, Esquire For Defendant :sal