HomeMy WebLinkAbout00-2685 CriminalCOMMONWEALTH
VS.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-2685 CRIMINAL
RIGOBERTO EVERALDO KING :
IN RE: OPINION PURSUANT TO RULE 1925
On April 19, 2001, the defendant was found guilty of the unlawful possession with intent
to deliver cocaine. He was sentenced to the Cumberland County Prison for a period of six to
sixteen months to date from the date of his initial commitment, December 6, 2000. The
defendant now appeals. His statement of matters complained of on appeal raises a single issue;
namely, that we erred in denying his motion to suppress evidence.
The evidence in this case was seized by Officer Jeffrey Kurtz of the Carlisle Police
Department. Officer Kurtz had received a call about suspicious drug activity in the 200 block of
North Bedford Street. The call contained the description of a large black male. The call also
described the clothing worn by that person. Eventually, Officer Kurtz located a person matching
this description walking north on North Bedford Street. (The call was received at approximately
12:20 p.m.) Officer Kurtz pulled his patrol car up to the sidewalk where Mr. King was walking.
The officer engaged Mr. King in some conversation explaining that he resembled the description
of a person mentioned in a call to the police. Officer Kurtz then asked the defendant whether he
had any identification and also asked him whether he was from the Carlisle area. The defendant
indicated that he was not from the area and produced a New York state identification card. Mr.
King handed the card to Officer Kurtz while Officer Kurtz was still seated in the patrol vehicle.
While still in the police car, Officer Kurtz asked the defendant whether he had any weapons.
When the defendant replied, "No," the officer asked if the defendant objected to his being patted
down. Again, the defendant replied, "No." Officer Kurtz exited the patrol vehicle and returned
Mr. King's identification to him. At that point, without prompting and before Officer Kurtz
conducted any sort of search, Mr. King approached the rear of the patrol vehicle and began to
take things out of his pockets. At that point, Officer Kurtz indicated that he was not concerned
with the contents of Mr. King's pockets but rather what he might have, if anything, in his
waistband. Again, the officer asked whether Mr. King had any weapons and he said, "No,
but .... "The officer then replied, "But what?" It was then that the defendant proceeded to
remove crack cocaine from one of his pockets. The defendant was then placed under arrest.
In our order disposing of a suppression motion, we determined that the interaction
between Officer Kurtz and the defendant was a "mere encounter." Thus, the defendant was
deemed to have given up the cocaine under circumstances which were consensual. The law with
respect to the approach and subsequent search of citizens by police was thoroughly reviewed in
the case of Com. v. Boswell, 554 Pa. 275,721 A.2d 336 (1998).
Interaction between police and citizens may be
characterized as a "mere encounter," an
"investigative detention," or a "custodial
detention." Police may engage in a mere encounter
absent any suspicion of criminal activity, and the
citizen is not required to stop or to respond.
Commonwealth v. Vasquez, 703 A.2d 25, 30
(Pa. Super. 1997). If the police action becomes too
intrusive, a mere encounter may escalate into an
investigatory stop or a seizure. Commonwealth v.
dackson, 428 Pa. Super. 246, 249, 630 A.2d 1231,
1233 (1993). If the interaction rises to the level of
an investigative detention, the police must possess
reasonable suspicion that criminal activity is afoot,
and the citizen is subjected to a stop and a period
of detention. Id. Probable cause must support a
custodial detention or arrest. Id.
To decide whether a seizure has occurred, we
apply the following objective test: "a court must
consider all the circumstances surrounding the
encounter to determine whether the police conduct
would have communicated to a reasonable person
that the person was not free to decline the officers'
requests or otherwise terminate the encounter."
Bostick, 501 U.S. at 439, 111 S.Ct. 2382. In
applying this test, it is necessary to examine the
nature of the encounter. Commonwealth v. Lewis,
535 Pa. 501,508,636 A.2d 619, 623 (1994).
Circumstances to consider include, but are not
limited to, the following: the number of officers
present during the interaction; whether the officer
informs the citizen they are suspected of criminal
activity; the officer's demeanor and tone of voice;
the location and timing of the interaction; the
visible presence of weapons on the officer; and the
questions asked. Terry v. Ohio, supra; Jermaine,
399 Pa. Super. at 508-509, 582 A.2d at 1060-61.
See also United States v. Mendenhall, 446 U.S.
544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
"[O]therwise inoffensive contact between a
member of the public and the police cannot, as a
matter of law, amount to a seizure of that person."
Mendenhall, at 555, 100 S.Ct. 1870.
Id. at 340.
The court, in Boswell, acknowledged that "no bright line" exists to delineate between the
various levels of interaction between police and citizens. The court, therefore, went on to
examine the facts in cases from both the Supreme and the Superior Courts.
The Superior Court found that a seizure did not
occur in In the Interest of dermaine, supra. In
Jermaine, two Amtrak Police Officers in plain
clothes approached Kathleen Jermaine (Jermaine)
in Philadelphia's 30th Street Train Station. They
inquired whether they could ask her some
questions, and she agreed. One of the officers
asked if she had just come in on the train, to which
she stated yes, she had just come from New York.
When the officer questioned whether she had a
ticket or receipt, she responded that she did not.
She further revealed that she did not have any
identification, but told the officers her name.
Jermaine then asked why they had stopped her.
The officer replied that they were part of a
narcotics interdiction team that was "going to stop
the flow of narcotics in Philadelphia by way of
Amtrak trains." Id. at 506, 582 A.2d at 1059. He
asked if she would give consent to search her bag.
When she did not reply, he repeated the question,
and she consented. The officer found a large
amount of white powdery substance that was
determined to be cocaine. The Superior Court held
that the evidence should not be suppressed because
this interaction did not rise to the level of a seizure.
The court reached this conclusion based on the
following facts: the officers did not display their
weapons or otherwise exert their authority to
suggest coercion; neither officer physically
blocked Jermaine's path; the officers did not speak
to her in a threatening manner; and, although they
identified themselves as members of a drug
interdiction unit, they did not inform Jermaine that
they suspected her of drug activity. Accordingly,
Jermaine's Fourth Amendment rights were not
implicated. Id. at 514, 582 A.2d at 1063.
In Commonwealth v. Lidge, 399 Pa. Super. 360,
582 A.2d 383 (1990), allocatur denied, 527 Pa.
598, 589 A.2d 689 (1991), the Superior Court
similarly held that a seizure did not occur where
two officers approached Tommie Lidge (Lidge) in
the Pittsburgh International Airport. After
checking in for her commuter flight, Lidge took a
seat in the center of the empty passenger waiting
area. The two officers approached her, sat to one
side of her, identified themselves, and inquired
whether she would mind speaking to them. Lidge
replied that she would not mind. The officers
inquired about her route then asked to see her
ticket, and she complied. When asked if she had
any identification, Lidge responded that she did not
and queried whether she had done anything wrong.
The officers explained that she had not done
anything wrong, but they were patrolling the
airport and she matched the "drug courier profile,"
which inspired them to speak with her. They asked
her if she would mind if they searched her bag and
informed her she did not have to consent and the
inquiry would end. She agreed to let them search
her bag, and the officers found cocaine. The
Superior Court held that no seizure took place
because the location and manner of the encounter,
coupled with the fact that the officers did not
restrain Lidge by use of physical force or a show of
authority, would have led a reasonable person to
believe she was free to decline the questions. Id. at
366, 582 A.2d at 386.
In another airport confrontation case, the Superior
Court held that what began as a mere encounter
escalated into an investigative detention in
Commonwealth v. Todd, 401 Pa. Super. 106, 584
A.2d 1002 (1991). In Todd, two officers were on
patrol as part of a drug interdiction program at the
Pittsburgh International Airport when they noticed
Carletta Todd (Todd) disembark from a flight from
Miami, Florida (a source city). The officers noted
that she walked deliberately and awkwardly, as if
something were restricting the movement of her
legs. After seeing her carry-on luggage go through
the x-ray machine at the security check and
noticing two oblong packages, they approached her
and identified themselves. Both officers were in
plain clothes. They questioned her about where
she had been, asked to see her ticket, and requested
identification. She replied that she had been in
Florida visiting family, but she had no
identification. They asked for consent to search
Todd's suitcase, and explained that she had the
right to refuse. Todd consented, but then retracted
her consent and refused. Upon further questioning
regarding her identification, Todd stated that it had
been stolen from her hotel room. Because this was
inconsistent with her prior statement that she had
been visiting family, the officers decided to
conduct a pat-down search, which revealed four
plastic bags of cocaine taped to Todd's belly. The
trial court held that reasonable suspicion existed to
warrant the pat-down search, therefore it did not
suppress the evidence. Id. at 109-110, 584 A.2d at
1003-1004. The Superior Court vacated and
remanded, finding that the interaction between
police and Todd constituted a mere encounter, but
only up to the point where she refused the search.
Id. at 112-114, 584 A.2d at 1005. Once she
withdrew her consent and the officers conducted a
pat-down search, the Superior Court held that the
encounter developed into a custodial detention, for
which probable cause did not exist. Id.
Id__~. at 340-341. We are satisfied that the instant case is not unlike the situations presented in
Germaine and Lidge. Officer Kurtz, in this case, did nothing to impede the movement of the
defendant by blocking his path or by physically restraining him. It does not appear that he raised
his voice or was otherwise authoritative or demanding. There was certainly no display of a
weapon. There was, instead, simply a conversation during the course of which the defendant, by
all appearances, volunteered the contraband. Accordingly, we continue to believe that our order,
overruling the suppression motion in this case, was proper.
May ~,,t ~ 2001
Edmund Zigmund, Esquire
Assistant District Attorney
Kevi~. Hiss, J.
Office of Public Defender
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