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HomeMy WebLinkAbout01-0075 criminalCOMMONWEALTH Vo DEMARAO GUMBY · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA 'NO. 2001 - 0075 CRIMINAL IN RE. DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. AND NOW, this ORDER OF COURT day of MAY, 2001, the defendant's Motion to Suppress Evidence is DENIED. By the Edward E. Guido, J. District Attorney William Braught, Esquire For the Defendant .sld COMMONWEALTH go DEMARAO GUMBY · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 2001 - 0075 CRIMINAL : : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J, OPINION AND ORDER OF COURT Currently before us is defendant's motion to suppress evidence. An evidentiary hearing was held before this Court on March 23,2001. For the reasons hereinafter set forth, the motion will be denied. FINDINGS OF FACT On December 31, 2000, Carlisle Police Sergeant Karen Finkenbinder was acting as the police dispatcher for her shift. At approximately 2'00 p.m., she received an anonymous report of a drug transaction which had just taken place at the comer of Pitt and North Streets in Carlisle. The caller gave a very specific account of the transaction. He also described the participants in some detail. They were both black maleS. One was on a bicycle and had "corn rows" in his hair. The other was on foot and wearing an orange and gray winter jacket. Sergeant Finkenbinder relayed the information to her patrol units. Officer Dzezinski and Officer Kurtz each proceeded in their separate marked patrol vehicles to the area of North and Pitt Streets. Within minutes, and within one block, of the alleged drug transaction, Officer Dzezinski noticed two black males walking. One, the NO. 2001 - 0075 CRIMINAL defendant, was wearing an orange and gray winter jacket,l As his cruiser approached the men, Officer Dzezinski noticed the defendant's hand go to his pocket. He took his eyes off the defendant briefly, to watch for traffic and to find a place to pull over. After he pulled over, he again looked at the defendant. While his hand was no longer near his pocket, the lining of the pocket was hanging out. Officer Dzezinski got out of his vehicle and approached the black males. Officer Kurtz had also exited his separate marked car and was approaching the defendant. Officer Dzezinski reached the defendant first,2at which time the following exchange took place: OFFICER: How you doing? Can I talk to you? I got a call that you just received some drugs. DEFENDANT' Not true. You can search me. I don't have anything.3 At that point, the defendant raised his arms, inviting a search of his person. The officer conducted the search, found drugs and placed the defendant under arrest. DISCUSSION The defendant contends that his stop by the police was an unlawful investigatory stop. Therefore, he argues that all evidence seized from him should be suppressed. The Commonwealth, on the other hand, contends that the interaction between the officers and the defendant was a mere encounter during which the defendant gave consent to search his person. Therefore, it argues that the motion should be denied. Under the circumstances of this case, we are satisfied that we are dealing with an investigatory stop. Commonwealth v. Ellis, 541 Pa. 285,662 A.2d 1043 (1995). See ~ The other male was also on foot and did not have "corn rows" in his hair. 2 At the time Officer Dzezenski confronted the defendant, Officer Kurtz was only a few feet away. 3 Since no transcript of the proceeding has been prepared, this is a paraphrase of the officer's testimony, taken from our notes. We found the officer's testimony to be credible. NO. 2001 - 0075 CRIMINAL also Terry v. Ohio, 392 U.S. 1 (1968). The show of authority by the police officers was such that a reasonable man in the defendant's position certainly would have thought that he was not free to leave. Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835, (1977). However, we are also satisfied that it was a lawful stop. In order for an investigatory stop to be lawful, a police officer must have reasonable suspicion to believe that criminal activity is afoot. Commonwealth v. Ellis, supra. In determining whether a reasonable suspicion exists, we are guided by the following: The fundamental inquiry is an objective one, namely, whether "the facts available to the officer at the moment of the [intrusion] 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) (quoting Terry, 392 U.S. at 21-22) (citations omitted). We are also mindful that "while a tip can be a factor, an anonymous tip alone is insufficient as a basis for reasonable suspicion." Commonwealth Lynch, 48 ED 2000, 2001 Pa. Super. 85, p. 6. Based upon the totality of the circumstances, we are satisfied that Officer Dzezinski had the requisite suspicion to conduct an investigatory stop of the defendant. He was observed within minutes and a block of the reported drug transaction. He matched the description of one of the participants. These observations, coupled with the defendant's suspicious behavior of emptying his pockets upon seeing the police cars, provided a sufficient basis for the stop. (See Commonwealth v. Zahir, supra, in which the Court noted that suspicious behavior can corroborate an anonymous tip). NO. 2001 - 0075 CRIMINAL We now turn to the search of the defendant. It is well settled that if a person voluntarily consents to a search, the evidence found as a result thereof may be used against him. Commonwealth v. Washington, 438 Pa. Super. 131,651 A.2d 1127 (1994). The burden is on the Commonwealth to prove that the consent was in fact voluntary and not the product of duress or coercion. Id. The question of whether a consent to search is voluntary "is a question of fact to be determined from the totality of all the circumstances." Commonwealth v. Hubbard, 472 Pa. 259, 274-275,372 A.2d 687, 693- 694 (1977). The facts in the case before us are similar to those in Commonwealth v. Washington, supra, where the Superior Court found a consent to be voluntary when given without any request from the police. As the Court noted' ... upon being stopped by police, appellant inquired as to the reason for his being stopped. When told that there were warrants outstanding for his arrest and that he was the subject of a drug investigation, appellant angrily told the police that they could search his vehicle. There was no request by police to conduct a search, nor is there any evidence that appellant was coerced in any way. The police had lawful reason to stop appellant's vehicle; and, thereafter, they merely responded to appellant's inquiry as to why he was being detained. Under these circumstances, we agree with the trial court that appellant acted voluntarily when he told police that they could search his vehicle. Likewise, in the instant case, there was no request by the police to conduct a search, nor was the defendant coerced in any way. Therefore, his consent to search was voluntary. For the reasons set forth above, we find that the police made a valid investigatory stop and conducted a valid consent search of the defendant. Therefore, his motion to suppress evidence will be denied. NO. 2001 - 0075 CRIMINAL ORDER OF COURT AND NOW, this 1 ST day of MAY, 2001, the defendant's Motion to Suppress Evidence is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney William Braught, Esquire For the Defendant :sld