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HomeMy WebLinkAbout98-1210 CriminalCOMMONWEALTH NASIE AHMAD SHAHEED OTN: E930545-0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 98-1210 CRiMINAL TERM CHARGE: UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARiJUANA AFFIANT: TPR. BRiAN OVERCASH IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., March 17, 1999. In this criminal case, defendant has appealed to the Superior Court from a judgment of · sentence for unlawful possession of a small amount of marijuana.~ The sole basis for the appeal is that the court erred in denying defendant's pretrial motion to suppress evidence.2 The rationale presented for suppression was that a detention and pat-down of defendant were without lawful basis? This opinion in support of the pretrial ruling denying defendant's motion to suppress is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On May 10, 1998, Pennsylvania State Police Trooper Brian R. Overcash and his partner, Trooper Allen Brown, received a radio report advising of an armed robbery that had occurred shortly ~ Defendant was found guilty as charged on stipulated facts by the Honorable Edward E. Guido of this court on November 23, 1998. On that same date, defendant x~as sentenced to pay a fine of $300 and the costs of prosecution, and to undergo a period of 30 days probation without supervision. 2 See Defendant's Concise Statement of Matters Complained of on Appeal, filed December 30, 1998. 3 N.T. 3. before on the Pennsylvania Turnpike near Sideling Hill, at about 8:00 a.m.4 The perpetrators in the robbery were described as two black males traveling in a gray vehicle.5 Additionally, Trooper Overcash learned that one robber was reported to be wearing black pants and a baseball cap, and the other some sort of knit capri At approximately 8:40 a.m., Trooper Overcash observed the defendant, a black male, and a companion, also a black male, traveling east on the Turnpike in a gray Dodge.7 At this point, Trooper Overcash began to follow the defendant's vehicle.8 Shortly thereafter, defendant entered the Plainfield service plaza? After parking the gray Dodge at the service plaza, the defendant and his passenger exited their vehicle and entered the plaza building.~° The defendant's passenger was wearing black pants, t~ At this time, Trooper Overcash and his partner exited their vehicle and looked into the interior of the defendant's vehicle,n A black baseball cap was on the back seat of the vehicle? When the defendant and his companion exited the plaza building, Trooper Overcash approached the defendant 4 N.T. 4, 6, 20. Sideling Hill is located approximately 50 miles west of the Plainfield Turnpike Plaza, where the events discussed in this opinion transpired. N.T. 26. s N.T. 5. 6 N.T. 5. ? N.T. 4, 17. 8 N.T. 5. 9 N.T. 5. ~0 N.T. 5-6. ~ N.T. 16. ~2 N.T. 6. t3 N.T. 6. 2 and requested his driver's license and toll ticket; the latter item was sought in order to determine where and when the defendant had entered the turnpike,t4 The information on the toll ticket revealed that defendant had entered the turnpike prior to the robbery and west of the scene of the crime? The ownership information for the car revealed that it was rented, but that neither the defendant nor his passenger was the person to whom the car was leased.~6 During the course of the conversation, Trooper Overcash was told that the defendant and his companion were headed to Philadelphia for two days.~? During this questioning, the defendant became nervous, which raised Trooper Overcash's suspicion. 18 At this point, Trooper Overcash asked the defendant if he could search his vehicle? After the defendant had signed a consent form, Trooper Overcash searched the interior of the car, which revealed no weapons or contraband? Trooper Overcash requested that the trunk be opened, and defendant consented? The trunk compartment was empty, containing no weapons or contraband; it also contained no luggage as might have been expected for an overnight trip.22 14 N.T. 6-7. ~5 N.T. 7. 16 N.T. 24. ~7 N.T. 10. ~s N.T. 7-8. 19 N.T. 9. 20 N.T. 9. 2~ N.T. 9. 22 N.T. 10. Trooper Overcash asked the defendant if he could look under the spare tire cover in the tnmk.23 Defendant then became "really nervous," but told the trooper to "go ahead.''24 As Trooper Overcash reached into the trunk to unscrew the retaining bolt, the defendant began to back up.25 Trooper Overcash responded to this action on the defendant's part by requesting that the defendant stop moving? Trooper Overcash then removed the spare tire cover and discovered a plastic bag "filled with U.S. currency.''27 When asked about this cash, both the defendant and his passenger denied any knowledge of its existence.28 Immediately after this exchange, Trooper Overcash frisked the defendant to check for weapons? During the course of this frisk, Trooper Overcash felt "a significant hard ball" in the defendant's front right pocket? When asked what the hard ball was, defendant stated that it was marijuana.3~ Trooper Overcash then asked to see the marijuana, and defendant reached into his pocket, withdrew the marijuana, and handed it to the trooper.32 Trooper Overcash testified that this 23 N.T. 10. 24 N.T. 10. 25 N.T. 10. 26 N.T. 10. 27 N.T. 1 0, 2 1-22. 28 N.T. 10-11. 29 N.T. 1 1. 30 N.T. 11. 3! N.T. 1 1. 32 N.T. 1 1. 4 series of events, from initial contact to discovery of the marijuana, spanned thirty minutes? At some point after this series of events, the Troopers were informed that the suspects in the robbery were driving a gray Oldsmobile? The defendant was charged with possession of a small amount of marijuana. He was not charged in connection with the robbery. DISCUSSION In a suppression hearing, the Commonwealth has the burden of going forward with the evidence and the burden of persuasion. Pa. R. Crim. P. 323(h). The standard of proof is by a preponderance of the evidence. Commonwealth ex. rel. Butler v. Rundle, 429 Pa. 141,239 A.2d 426 (1968). Interactions between citizens and police have been placed into three categories. The least intrusive of these is the "mere encounter (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond." Commonwealth v. Ellis, 541 Pa. 285,293-94, 662 A.2d 1043, 1047 (1995). The second level, sometimes called an investigative detention, "must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest." See id. at 394, 662 A.2d 1047. The third level consists of an "arrest or custodial detention [which] must be supported by probable cause." Id. When engaged in an investigative detention, police may also frisk an individual to check for weapons for the police officers' protection. See Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. 33 N.T. 28. 34 N.T. 17. Super. Ct. 1997) (stating that "Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),] and its progeny set as the standard for allowing a frisk, the presence of a reasonable articulable suspicion that criminal activity is afoot and that the suspect may be armed and dangerous"). The Superior Court has also stated that "[t]he facts at the officer's disposal need not be enough to constitute probable cause. Rather, if the officer's suspicion is based on specific, articulable facts and reasonable inferences drawn from those facts in light of the officer's experience, the officer may conduct a weapons search." Commonwealth v. Stoner, 710 A.2d 55, 57 (Pa. Super. Ct. 1998). "To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties ...."Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. Ct. 1998). "Merely because a suspect's activity may be consistent with innocent behavior does not alone make detention and limited investigation illegal." Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa. Super. Ct. 1998). In the case sub judice, at the time that Trooper Overcash approached defendant and his companion, he was in possession of sufficient facts to warrant a reasonable articulable suspicion that criminal activity was afoot and that defendant and his companion may have been armed and dangerous. These facts included the occurrence, timing and location, on a limited access highway, of an armed robbery, and the coincidence of car occupants and clothing on the highway shortly thereafter, at a time and distance consistent with the individuals' presence at the scene of the robbery. As the investigation progressed in the succeeding one-half hour, the facts known to the troopers on the scene increased, rather than decreased, the level of reasonable articulable suspicion that criminal activity was afoot and that defendant and his companion may have been armed and dangerous. These facts included evidence that the site of the robbery was in the line of travel on the 6 highway of defendant and his companion, that the vehicle was neither owned by nor leased to either of them, that the suspects' claim that the purpose of their trip was to spend two days in Philadelphia was not corroborated by the presence of luggage, that defendant reacted visibly to the prospect of a search of the vehicle's spare tire compartment, that currency was hidden in a bag in the compartment, and that neither suspect was willing to acknowledge awareness of the existence of the money. Stated otherwise, the period of investigative detention during which defendant and his companion were questioned, a consensual search of the vehicle was effected,35 and defendant's pat- down for weapons occurred was supported by specific articulable facts and reasonable inferences therefrom tending to show that criminal activity was afoot and that defendant and his companion may have been armed and dangerous. Accordingly, the court was unable to agree with defendant that evidence should have been suppressed on the ground that it was the product of an unlawfully- based detention and pat-down. For this reason, defendant's pretrial motion to suppress was denied. Travis N. Gery, Esq. Senior Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender :rc 35 As a general rule, one's voluntary consent to a search during a period of lawful detention is valid. Commonwealth v. Francis, 700 A.2d 1326, 1329 (Pa. Super. Ct. 1997).