HomeMy WebLinkAbout00-0329 CriminalCOMMONWEALTH
Vo
ANDREW YOUNG KIM
OTN: L054235-6
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-0329 CRIMINAL TERM
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
ORDER OF COURT
?~da of June, 2000, upon consideration of Defendant's
AND NOW, this. y
omnibus pretrial motion in the form of a motion to suppress, following a hearing
held on April 19, 2000, and for the reasons stated in the accompanying opinion, it
is ordered and directed as follows:
1. Pursuant to an agreement of
Defendant's motion is granted to the
the Commonwealth,
extent that it seeks
suppression of evidence resulting from a search of the vehicle
in which Defendant was a passenger conducted after the
discovery of suspected marijuana in the vehicle's ashtray and
the discovery of suspected marijuana upon Defendant's person.
2. Defendant's motion is otherwise denied.
BY THE COURT,
esiey Oler, :, '
John A. Abom, Esq.
Sr. Assistant District Attorney
Daniel A. Rendine, Esq.
1325 Spruce Street
Philadelphia, PA 19107
Attorney for Defendant
COMMONWEALTH
Vo
ANDREW YOUNG KIM
OTN: L054235-6
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 00-0329 CRIMINAL TERM
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., June 6, 2000.
In this criminal case, Defendant has been charged with possession of
marijuana with intent to deliver, simple possession of marijuana, and possession of
drug paraphernalia. The charges arise out of the stop of a vehicle in which
Defendant was a passenger.
For disposition at this time is Defendant's omnibus pretrial motion in the
form of a motion to suppress. A hearing on the motion was held on April 19,
2000.
At the hearing, the Commonwealth indicated its election not to pursue
admission of certain of the evidence challenged by Defendant. The balance of the
evidence at issue is said by Defendant to be excludable as the result of an illegal
seizure of alleged marijuana contained in an ashtray within the vehicle and an
illegal seizure of alleged marijuana from Defendant's person.
For the reasons stated in this opinion, Defendant's motion will be granted
to the extent that it is not opposed by the Commonwealth and will be otherwise
denied.
STATEMENT OF FACTS
For present purposes, the factual record in the case consists of certain
stipulations of counsel at the suppression hearing~ and the testimony of the affiant,
~ N.T. 2-14, Suppression Hearing, April 19, 2000 (hereinafter N.T. __,
Suppression Hearing).
Trooper Anthony Todaro, at the preliminary hearing.2 This testimony was
incorporated into the suppression hearing record by agreement of counsel,3 with
the further understanding that the trooper's testimony was to be regarded as fully
credible.4
On Sunday, January 23, 2000, at 10:03 p.m., Trooper Todaro made a lawful
traffic stop of a white 1995 Plymouth Neon automobile traveling westbound on
the Pennsylvania Turnpike in Cumberland County, Pennsylvania, because it was
speeding at the rate of 82 miles per hour in a 65 mile-per-hour zone.5 The car
contained three occupants: Defendant, who was sitting in the right front
passenger's seat; a male driver; and a third male, sitting in the right rear
passenger's seat.6
The driver told the trooper that he and his passengers were returning from
their homes to Shippensburg University where they were students.? In speaking
with the driver, Trooper Todaro perceived the strong smell of an air freshener and
the faint smell of burnt marijuana emanating from the vehicle,g He was familiar
with the odor of burnt marijuana through police training.9
2 Commonwealth's Exhibit 1, Suppression Hearing.
3 N.T. 2, 10, Suppression Hearing.
4 N.T. 10, Suppression Hearing.
5 N.T. 4-5, 13, Preliminary I~earing, February 2, 2000
Preliminary Hearing). The legality of the traffic stop
Defendant. N.T. 3, Suppression Hearing.
6 N.T. 5-7, 18, Preliminary Hearing.
? N.T. 5-6, Preliminary Hearing.
8 N.T. 5-6, Preliminary Hearing.
9 N.T. 15, Preliminary Hearing.
2
(hereinafter N.T. ,
is not questioned--~-y
The trooper returned to his patrol car, confirmed the validity of the driver's
license and the vehicle's registration, and wrote out a citation for speeding,l° He
returned to the driver's side of the vehicle,il As the trooper issued the citation to
the driver and informed him of its contents, he perceived, unmistakably this time,
the odor of burnt marijuana emanating from the vehicle.~2
Trooper Todaro had the driver get out and walk to the rear of the vehicle,
where he told him that he had smelled marijuana coming from the vehicle.~3 The
driver advised the trooper that he had no knowledge of any illegal drugs in the
~4
car. No drugs were found on the person of the driver.~5
Trooper Todaro spoke to Defendant from the driver's side of the vehicle,
informing him that he could smell marijuana emanating from the car.~6 In doing
so, he could see within the vehicle that the ashtray, which was partly open,
contained eleven or twelve roaches,l? and that a large amount of tobacco taken
from cigars lay on the floor of the vehicle, both loose and in a bag.~8 The trooper
was familiar with the practice among marijuana users of removing tobacco from
l0 N.T.
Il N.T.
12 N.T.
13 N.T.
14 N.T.
15 N.T.
16 N.T.
17 N.T.
18 N.T.
6, Preliminary Hearing.
6, Preliminary Hearing.
6, Preliminary Hearing.
6, Preliminary Hearing.
6, Preliminary Hearing.
18, Preliminary Hearing.
7, Preliminary Hearing.
19-20, Preliminary Hearing.
7, 18, Preliminary Hearing.
19 Defendant denied that
cigars, refilling them with marijuana, and smoking them.
there were any drugs in the vehicle.2°
Upon request, Defendant handed the ashtray to Trooper Todaro.21 It
displayed a number of brown cigar-type butts; these contained green, vegetable
material which was not tobacco and which emitted an aroma of burnt marijuana?
23
The trooper placed the ashtray in his patrol car.
Trooper Todaro had Defendant step out of the vehicle.24 At this point,
Defendant was not free to leave? Defendant again denied that there were any
controlled substances in the car or that anyone had been smoking marijuana?
The driver then told the trooper that there had been some marijuana activity in the
car in which he (the driver) had participated several days previously.27
The trooper patted Defendant down for purposes of his own safety.28 In
Defendant's right, front pants pocket Trooper Todaro detected a "plastic
crumbling" sound,29 which, given the preceding events, he suspected was a plastic
19 N.T. 22, Preliminary Hearing.
20 N.T. 7, Preliminary Hearing.
2t N.T. 7, Preliminary Hearing.
22 N.T. 7-8, Preliminary Hearing.
23 N.T. 8, Preliminary Hearing.
24 N.T. 8, Preliminary Hearing.
25 N.T. 23, Preliminary Hearing.
26 N.T. 8, Preliminary Hearing.
27 N.T. 8, Preliminary Hearing.
28 N.T. 9, Preliminary Hearing.
29 N.T. 9, Preliminary Hearing; see N.T. 21, Preliminary Hearing.
4
bag containing marijuana.3° Upon request, Defendant removed contents from all
of his pockets, including currency from the pocket in question, but neglected to
remove the particular item which had caused this sound.31
The trooper asked him to remove the item which had produced the sound.32
He did so, revealing a plastic baggie containing suspected marijuana.33
When backup arrived, Trooper Todaro conducted a warrantless search of
the vehicle.34 On the floor on the right, front passenger's side of the car he found a
black book bag? Upon opening the bag, he detected a "very strong odor of raw
marijuana.''36 He was familiar with the odor of raw marijuana through police
training.37
The bag contained about a pound and a half of suspected marijuana? Its
contents also included 100 individual Ziplock baggies, each a square inch in size.39
Defendant admitted that the book bag was his, but claimed that he was
30 N.T. 22, Preliminary Hearing. The Commonwealth's attorney stipulated at the
suppression hearing that the sensory impression made by the item would not, in
itself, have warranted its seizure as contraband under the "plain feel doctrine."
N.T. 4, Suppression Hearing.
31 N.T.
32 N.T.
33 N.T.
34 N.T.
35 N.T.
36 N.T.
37 N.T.
38 N.T.
39 N.T.
9, 21-23, Preliminary Hearing.
23, Preliminary Hearing.
9, Preliminary Hearing.
9, 25, Preliminary Hearing.
10, Preliminary Hearing.
10, Preliminary Hearing.
16, Preliminary Hearing.
12-13, Preliminary Hearing.
10, Preliminary Hearing.
transporting the suspected marijuana to its owner, on whose behalf he had bought
41
it for $425.00.40 He said that he did not know this person's name.
At the suppression hearing, the Commonwealth advised that it had elected
not to pursue admission of evidence obtained as a result of the warrantless search
of the automobile.42 Remaining in dispute are whether evidence relating to the
contents of the ashtray must be suppressed and whether evidence relating to the
item found on Defendant's person must be suppressed, as products of illegal
police conduct.43
DISCUSSION
Statement of Law
Constitutional protections against unreasonable searches and seizures;
exclusionary rule. The Fourth Amendment to the Federal Constitution provides
that "[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated .... "
Section 8 of Article 1 of the Pennsylvania Constitution provides that "[t]he people
shall be secure in their persons, houses, papers and possessions from unreasonable
searches and seizures .... "In general, under the exclusionary rule, "where [a]
violation of the law [by law enforcement authorities] implicates constitutional
concerns and/or fundamental rights, exclusion of the evidence seized by police is
warranted." Commonwealth v. Kiner, 697 A.2d 262, 268 (Pa. Super. Ct. 1997).
Burden of proof at suppression hearing. At a suppression hearing, where
the admission of evidence is challenged by a defendant on the ground that it was
unconstitutionally seized, the burden of proof is upon the Commonwealth to show
by a preponderance of the evidence that the evidence was not obtained in violation
40 N'T. 10-1 1, Preliminary Hearing.
41 N.T. 11, Preliminary Hearing.
42 N.T. 2, 5, Suppression Hearing.
43 N.T. 5-6, Suppression Hearing.
6
of the defendant's rights. See Pa. R. Crim. P. 323(h); Commonwealth v. Stoops,
723 A.2d 184, 186 (Pa. Super. Ct. 1998), appeal denied, 747 A.2d 368 (Pa. 1999).
Plain view doctrine. The plain view doctrine, whereby a police officer may
seize an item without a warrant under certain circumstances, has been described
by the Pennsylvania Supreme Court as follows:
If a police officer views an object from a lawful vantage
point, and the incriminating nature of the object is
immediately apparent to the officer, a warrantless seizure of
the object is justified. There can be no reasonable expectation
of privacy in an object that is in plain view. To judge
whether the incriminating nature of an object was
immediately apparent to the police officer, [one] must
consider the totality of the circumstances.
Commonwealth v. Petroll, 558 Pa. 565, 576, 738 A.2d 993, 999 (1999)
(warrantless seizure of illegal radar detector in plain view in motor vehicle of
commercial driver upheld).
Warrantless searches of automobiles based on probable cause. "The
United States Supreme Court has recognized an 'automobile exception' to the
[general requirement for a search] warrant ..., which has been described as
follows: 'a search warrant is unnecessary where there is probable cause to search
an automobile on the highway; the car is movable, the occupants are alerted, and
the car's contents may never be found again if a warrant must be obtained. Hence
an immediate search is constitutionally permissible.'" Commonwealth v. Stewart,
740 A.2d 712, 715 (Pa. Super. Ct. 1999), appeal granted, 2000 Pa. Lexis 1057
(Pa. Apr. 28, 2000), quoting Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct.
1975, 1981, 26 L. Ed. 2d 419, 428 (1970).
Although the Pennsylvania Supreme Court has in some respects discerned
in the Pennsylvania Constitution a greater protection against warrantless
automobile searches than provided by the Federal Constitution, "[it] has
recognized the special circumstances involved in searching an automobile[.]"
Commonwealth v. Stewart, 740 A.2d 712, 715-16 (1999), appeal granted, 2000
7
Pa. Lexis
Court has
1057 (Pa. Apr. 28, 2000). In this regard, the Pennsylvania Supreme
stated as follows:
[I]n considering the reasonableness of a given search or
seizure of an automobile, the need for a warrant is often
excused by exigent circumstances. The reasons are two-fold.
First, a vehicle is highly mobile and the likelihood is therefore
great that it and its contents may never be found if police
were prohibited from immobilizing it until a warrant can be
secured. Second, one's expectation of privacy with respect to
an automobile is significantly less than that relating to one's
home or office.
Commonwealth v. Holzer, 480 Pa. 93, 103,389 A.2d 101,106 (1978).
In Pennsylvania, as a general rule "a search warrant is required before
police may conduct any search," but
[a]s [one] exception to this rule, police may search a vehicle
without a warrant where: (1) there is probable cause to
believe that an automobile contains evidence of criminal
activity; (2) unless the car is searched or impounded, the
occupants of the automobile are likely to drive away and
contents of the automobile may never again be located by
police; and (3) the police have obtained this information in
such a way that they could not have secured a warrant for the
search, i.e., there are exigent circumstances.
Commonwealth v. White, 543 Pa. 45, 51-52, 669 A.2d 896, 900 (1995).
On the other hand, "[t]he level of probable cause necessary for a
warrantless search of an automobile is the same as that needed to obtain a
warrant ....The fact that the warrant requirement is relaxed for searches of
vehicles does not likewise relax the need for probable cause prior to the search."
Commonwealth v. Talley, 430 Pa. Super. 351, 357, 634 A.2d 640, 643 (1993)
(citations omitted).
Probable cause, in the context of a search of a motor vehicle, "exists if the
facts available to a police officer would warrant a man of reasonable caution to
believe a search would result in the discovery of contraband." Commonwealth v.
8
Williams, 419 Pa. Super. 380, 385, 615 A.2d 416, 419 (1992), appeal denied, 533
Pa. 651,624 A.2d 110 (1993). With particular reference to marijuana, perceptions
which support a belief that the substance is present in an automobile include the
detection of an odor of marijuana emanating from the vehicle and the observation
of roaches within the vehicle. See Commonwealth v. Williams, 419 Pa. Super.
380, 615 A.2d 416 (1992), appeal denied, 533 Pa. 656, 624 A.2d 110 (1993).
Search of suspect's person. A warrantless search of an individual is
permissible if it is incident to a lawful arrest. See Commonwealth v. Garcia, 443
Pa. Super. 414, 422 n. ll, 661 A.2d 1388, 1392 n. ll (1995), appeal denied, 543
Pa. 709, 672 A.2d 304 (1996). "Probable cause necessary for a [lawful]
warrantless arrest is established when the facts and circumstances which are
within the knowledge of the officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to warrant a person of
reasonable caution to conclude that the suspect has or is committing a crime."
Commonwealth v. Lateef, 446 Pa. Super. 640, 645 n.3, 667 A.2d 1158, 1161 n.3
(1995).
It is not necessary that a search incident to an arrest be precisely
contemporaneous with the arrest or that it follow the arrest. "[A] search conducted
immediately prior to an arrest is as valid as a search conducted subsequent and
incident to the arrest provided the officer had probable cause to arrest prior to the
search as long as the contraband discovered in the search is not used as
justification or probable cause for the arrest." Commonwealth v. Trenge, 305 Pa.
Super. 386, 403, 451 A.2d 701,710 (1982). Nor is it dispositive of the question
of the validity of a seizure of an item from a suspect's person that the police
officer in question, having acquired probable cause to arrest, believed that he was
conducting a Terry44 pat down.
Although the officer did not declare that he was formally
placing the defendants under arrest, and regardless of the fact
44 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 975 (1968).
9
that he may have believed that he was conducting a Terry pat
down, the objective circumstances at the time of the pat down
lead to the inescapable conclusion that he had conveyed to the
defendants that they were not free to leave.
Commonwealth v. Elliott, 376 Pa. Super. 536, 551, 546 A.2d 654, 661 (1988),
appeal denied, 521 Pa. 617, 557 A.2d 721 (1989).
Application of Law to Facts
In the present case, it is believed that the seizure of the contents of the
ashtray in the vehicle and the seizure of the bag containing suspected marijuana
from Defendant's person by Trooper Todaro were both constitutionally
permissible. With respect to the ashtray, the following circumstances existed at
the time of its seizure: two individuals were still in the automobile; the trooper was
familiar by virtue of his training with the smell of burnt marijuana; he perceived
what he regarded as an unmistakable odor of burnt marijuana emanating from the
vehicle; he observed roaches in the ashtray of the vehicle; he was familiar with the
practice among marijuana users of utilizing empty cigars to smoke marijuana; and
he noticed cigar tobacco on the floor of the front passenger's side of the vehicle,
where Defendant was sitting. In combination, these factors seem to the court to
have justified the warrantless seizure of the contents of the ashtray under the
principles recited above pertaining to plain view and automobile searches based
upon probable cause and exigent circumstances.
With respect to the bag of suspected marijuana, these circumstances existed
at the time of its seizure: the trooper was familiar by virtue of his training with the
smell of burnt marijuana; he had perceived what he regarded as an unmistakable
odor of burnt marijuana emanating from the vehicle; he had seized an ashtray from
the vehicle which contained suspected marijuana; he was familiar with the practice
among marijuana users of utilizing empty cigars to smoke marijuana; he had
noticed cigar tobacco on the floor of the front passenger's side of the vehicle,
where Defendant had been sitting; and the other person in the front seat had denied
10
all knowledge of marijuana smoking on this occasion. In combination, these
factors seem to the court to have constituted probable cause for Defendant's arrest,
and the search which preceded his arrest represented a permissible search incident
thereto.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 6th day of June, 2000, upon consideration of Defendant's
omnibus pretrial motion in the form of a motion to suppress, following a hearing
held on April 19, 2000, and for the reasons stated in the accompanying opinion, it
is ordered and directed as follows:
1. Pursuant to an agreement of the Commonwealth,
Defendant's motion is granted to the extent that it seeks
suppression of evidence resulting from a search of the vehicle
in which Defendant was a passenger conducted after the
discovery of suspected marijuana in the vehicle's ashtray and
the discovery of suspected marijuana upon Defendant's person.
2. Defendant's motion is otherwise denied.
BY THE COURT,
John A. Abom, Esq.
Sr. Assistant District Attorney
Daniel A. Rendine, Esq.
1325 Spruce Street
Philadelphia, PA 19107
Attorney for Defendant
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
11