HomeMy WebLinkAbout99-1944 CriminalCOMMONWEALTH
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TREMAINE MAYFIELD
OTN: L040416-5
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-1944 CRIMINAL TERM
CHARGES: (1) UNLAWFUL POSSESSION
SCHEDULE II C.S.
(2)UNLAWFUL POSSESSION
DRUG PARAPHERNALIA
AFFIANT: DET. M. MCLAUGHLIN
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., October 6, 2000.
This case presents the issue of whether a police officer's observation of a
flickering light, consistent with the use of a pipe, in a legally parked vehicle
occupied by one person on a summer evening will warrant a subsequent stop of
the vehicle on the theory that drug activity may have occurred. The issue arose in
the context of a suppression motion filed by Defendant, who was charged xvith
misdemeanor offenses of possession of a controlled substance and possession of
drug paraphernalia as a result of the detention.
A hearing on Defendant's suppression motion was held on June 28, 2000.
Following the hearing, the court entered an order granting the motion to suppress:
AND NOW, this 12th day of July, 2000, upon
consideration of Defendant's omnibus pretrial motion in the
form of a motion to suppress, and following a hearing held on
June 28, 2000, the motion is granted. Cf. Commonwealth v.
DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992).
The Commonwealth filed an appeal from the order on August 9, 2000.~
This opinion in support of the order is written pursuant to Pennsylvania Rule of
Appellate Procedure 1925 (a).
~ Although the notice of appeal filed on August 9, 2000, indicated that the order appealed from
had been entered on June 21, 2000, an amended notice filed on August 28, 2000, corrected the
record to reflect that the date of the order appealed from was July 12, 2000.
STATEMENT OF FACTS
On the evening of Saturday, July 17, 1999, at 9:20 p.m., an Upper Allen
Township (Cumberland County) police detective, who was experienced in drug
investigations, was driving an unmarked Chevrolet Blazer police vehicle on a
public road in the township, in an area which had "produced drug arrests as well as
underage drinking arrests.''2 Where the road ended in a cul-de-sac, he saw two
vehicles, apparently unassociated, legally parked in the cul-de-sac?
At one vehicle, individuals were outside of the vehicle "doing something
with two plastic coolers.''4 As he drove around the cul-de-sac, passing the second
vehicle, which was a blue Volkswagen, he noticed a flickering light inside the
car.5
As he departed the immediate area of the cul-de-sac, according to his
testimony, the detective
was on the radio, radioing for marked patrol vehicles for both,
what I suspected was, some underage drinking activity in the
other vehicle and possibly a narcotics violation in the blue
Volkswagen.6
The detective parked his vehicle at a distance from the two vehicles in
question, stepped out and awaited the arrival of the marked police vehicles.7 He
could see that the Volkswagen contained only one occupant and that the flickering
of the light somewhat illuminated the individual's face.8
The depth of the flame and the fact that it flickered off and on again over a
period of three minutes led the detective to assume that he was viewing a lighter as
2 N.T. 5-6; see Criminal Complaint, Affidavit of Probable Cause.
3 N.T. 7, 16.
4N.T. 7.
5Id.
6Id.
7 N.T. 7, 10, 17.
g N.T. 8, 18.
2
opposed to matches.9 The detective's testimony suggested that the activity in the
vehicle was more consistent with that of a pipe smoker than a cigar or cigarette
smoker,l° He noted that "a pipe smoker generally lights a pipe quite often because
,,11
it goes out ....
Based on his experience as a drug investigator, the detective noted that
I personally have been in situations where I've observed
people smoking crack cocaine, as well as marijuana, where
they're lighting a bowl, a brass bowl generally, a metal bowl,
and the flame is used to ignite the substance in the bowl. And
then you inhale it. You hold whatever the pipe consists of.
And the pipe consists of extremely large amounts of items.
But the bowl itself, it contains the controlled substance ....
[Just as a pipe smoker needs to frequently light his pipe, i]t's
generally the same for marijuana and/or cocaine, crack
cocaine. You need to keep it constantly lit to get the inhalant
out of the bowl to ingest the drug.12
The detective was not, however, able to see what the object was to which
the flickering light had been applied.~3 The blue Volkswagen thereafter drove
~4 In the absence of the arrival of the officers whose presence
away from the scene.
he had requested, the detective reentered his vehicle, proceeded after the
Volkswagen, and stopped it.~5 He testified that
[i]t was my belief that there was narcotics activity in the
vehicle .... I made the decision to stop the car thinking that
criminal activity was afoot, mainly narcotics usage.
9 N.T. 7-8.
n0 N.T. 9.
ll ld'
~ N.T. 8-9.
u N.T. 19.
~4 N.T. 9-10.
~ N.T. 10.
~6 id'
Defendant was the driver and only occupant of the Volkswagen.~7 Upon
stopping the vehicle, the detective observed several plastic bags in the interior.~8
In response to questioning by the detective, Defendant stated that he had been
smoking cigarettes and listening to music.~9
It developed that a summary offense warrant from another municipality was
outstanding against Defendant.2° When the detective directed him to produce the
device that he had been smoking, Defendant reached underneath the driver's seat
and produced a homemade pipe in the form of a small, plastic Scope mouthwash
bottle.2~ This item was found to contain a residue of cocaine?
Following his arraignment on charges of unlawful possession of a
controlled substance and unlawful possession of drug paraphernalia, Defendant
filed an omnibus pretrial motion in the form of a motion to suppress.23 The
motion was based upon contentions that the stop of Defendant's vehicle was
unlawful and/or that the retrieval of the smoking device was unlawful, under the
federal and Pennsylvania constitutions.24
DIS~
At a suppression hearing, the burden of proof is upon the Commonwealth
to show that the challenged evidence was legally obtained. Pennsylvania Rule of
Criminal Procedure 323(h) provides as follows:
The Commonwealth shall have the burden of going
forward with the evidence and of establishing that the
l? N.T. 11.
18 N.T. 13.
19 N.T. 12.
2° N.T. 11.
21 N.T. 13.
22 N.T. 14-15.
23 Omnibus Pre-trial Motion, filed June 9, 2000.
24 Id.
4
challenged evidence was not obtained in violation of the
defendant's rights ....
"Encounters between the public and the police that do not involve a formal
arrest may be categorized as mere encounters, non-custodial detentions, and
custodial detentions." Commonwealth v. Brown, 388 Pa. Super. 187, 189, 565
A.2d 177, 178 (1989); see Commonwealth v. Ellis, 379 Pa. Super. 337, 353, 549
A.2d 1323, 1331, appeal denied, 522 Pa. 601,562 A.2d 824 (1988). The latter
two types of encounter constitute seizures for purposes of the Fourth Amendment
to the Federal Constitution and Article I, Section 8, of the Pennsylvania
Constitution, and are invalid if unreasonable. Commonwealth v. Diaz, 442 Pa.
Super. 238, 251-52, 659 A.2d 563,569-70, appeal denied, 542 Pa. 658, 668 A.2d
1123 (1995).
The constitutionality of a non-custodial detention, referred to in various
contexts as a Terry stop,25 a traffic stop,26 an investigative stop,27 an investigative
detention,28 an investigatory stop,29 and an investigatory detention,3° is dependent
upon the existence of "specific and articulable facts which, if taken together with
rational inferences from those facts, reasonably warrant a belief that criminal
activity is afoot." Commonwealth v. McDonald, 740 A.2d 267, 269 (Pa. Super.
Ct. 1999), appeal denied, 757 A.2d 930 (Pa. 2000).
Neither a "[p]oliceman's intuition" nor a police officer's "hunch" will
support an encounter initiated by police in the form of a stop of a vehicle.
Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d 177, 182, appeal
25 Commonwealth v. Rogers, 741 A.2d 813 (Pa. Super. Ct. 1999), appeal docketed, No. 99-851
(Pa. July 31, 2000).
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
denied, 533 Pa. 598, 617 A.2d 1273 (1992); In the Interest ofS. D., 429 Pa. Super.
576, 579, 633 A.2d 172, 174 (1993).
Thus, in Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992), the
Pennsylvania Supreme Court reversed an order of the Pennsylvania Superior Court
that reversed a trial court's suppression of evidence of drugs and drug
paraphernalia seized following a stop of a vehicle, where the vehicle had been
lawfully parked on the berm of a road at about midnight in an area where police
had been requested by the abutting landowner to check for suspicious vehicles,
where the dome light of the vehicle was on and the exterior lights extinguished,
where movements that police interpreted as furtive were observed within the
vehicle upon their approach, and where the vehicle thereupon departed. The Court
held that these facts were insufficient to justify an investigative stop of the vehicle.
Id. at 303-08, 608 A.2d at 1032-34.
As is true of most suppression cases, this one raises an issue of
constitutional dimension as to what is compatible with a free society in terms of
police conduct designed to effect enforcement of the criminal law. More
specifically, such cases involve a balancing of "the societal interest in law
enforcement ... against the individual's right to personal security free from
arbitrary government interference." Commonwealth v. Davidson, 389 Pa. Super.
166, 170-71,566 A.2d 897, 899 (1989), appeal denied, 525 Pa. 624, 578 A.2d 412
(1990). To this end, the rule that a person may not be detained by police for
investigative purposes, except under the circumstances recited above, has been
adopted.
In the present case, it seemed to the court that the facts which supported the
stop of Defendant's vehicle by the law enforcement officer amounted to little more
than the officer's observation of a person in a lawfully parked vehicle on a
summer evening who was probably smoking a pipe of some kind. Without in any
way questioning the detective's good faith in the performance of his duty, the
court was of the view that the product of these circumstances was more properly
characterized as a hunch on the part of the officer than a reasonable suspicion,
based upon specific and articulable facts, which would warrant the seizure of the
individual for investigative purposes under the federal and Pennsylvania
constitutions.
Based upon the conclusion that the stop of Defendant's vehicle was not
compatible with the Fourth Amendment to the Federal Constitution or Article I,
Section 8, of the Pennsylvania Constitution, the court entered the order granting
Defendant's suppression motion, from which the Commonwealth has appealed.3~
BY THE COURT,
~sley Ol~t~, r., j' ' .
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Aria M. Waller, Esq.
Assistant Public Defender
3~ In view of this ground for disposition of the motion, it was not necessary to consider
Defendant's second ground for suppression, involving the detective's direction to Defendant to
produce the item which he had been smoking.
7