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HomeMy WebLinkAbout99-0352 CriminalCOMMONWEALTH Vo ROBERT ROMO OTN: F 195055 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGE: UNLAWFUL POSSESSION OF A SMALL AMT. OF MARIJUANA : No. 99-0352 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. ow, or day of July, 1999, upon consideration of Defendant's omnibus pretrial motion for relief in the form of a motion to suppress, following a hearing and for the reasons stated in the accompanying opinion, the motion is granted to the extent that evidence resulting from the affiant's pat down of Defendant's person is suppressed. BY THE COURT, Will I. Gabig, Esq. Senior Assistant District Attorney For the Commonwealth Aria M. Waller, Esq. Assistant Public Defender For the Defendant COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CHARGE: UNLAWFUL POSSESSION OF A : SMALL AMT. OF MARIJUANA : ROBERT ROMO : OTN: F 195055 : No. 99-0352 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., July 14, 1999. For disposition in this criminal case in which Defendant is charged with possession of a small amount of marijuana is an omnibus pretrial motion for relief in the form of a motion to suppress filed on behalf of Defendant. The premise of the motion is that a seizure of alleged marijuana from Defendant's person by a police officer occurred during an investigative detention which was not supported by reasonable suspicion that criminal activity was afoot, and in the course of a pat down which was not supported by reasonable suspicion that Defendant was armed and dangerous. A hearing was held on Defendant's motion on Thursday, July 8, 1999. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered. FINDINGS OF FACT On the evening of Tuesday, September 28, 1998, at about 11:30 p.m., the affiant, a Carlisle Borough police officer, observed Defendant and a juvenile on a street in the borough. The officer, who was in uniform and in an unmarked police car, was familiar with the juvenile's age, knew him to be violating a borough curfew ordinance by being out at that hour, placed him in the police car for purposes of transport to the police station, briefly questioned him as to his activities that evening, and proceeded to detain and question Defendant. An aroma of marijuana was discemible to the officer from both individuals. The bases for the investigative detention of Defendant were the officer's awareness that a theft of videotape items from a location within several blocks of Defendant's presence had been reported to borough police earlier that day, that Defendant was at this time carrying a plastic bag containing videotape items,~ and that the officer~had on an earlier occasion received information from fellow officers leading him to believe that a bench warrant might be outstanding for Defendant as a consequence of his failure to appear in court on an appeal from summary conviction.2 The officer was aware of an incident in Defendant's past in which he had become disorderly when arrested for public drunkenness. One of Defendant's legs was trembling during the detention. However, he was cooperative with the officer and nothing in his conduct can be said to have been threatening or unruly. In questioning Defendant, the officer perceived that Defendant's account of how long he had been with the juvenile that evening did not coincide with the juvenile's. In addition, Defendant indicated that he had gotten the videotape items at the residence of his brother's girlfriend nearby, but was unable to provide her precise street address. The officer subjected Defendant to a pat down for the purpose of promoting the officer's safety, during the course of which the alleged marijuana upon which the charge is based was discovered. DISCUSSION In a hearing on a suppression motion, the Commonwealth has the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights. Pa. R. Crim. P. 323(h). The standard of proof is preponderance of the evidence. Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. Ct. ~ It transpired, apparently, that the videotape items being carded by Defendant were not related to the theft. 2 It transpired, apparently, that this bench warrant had not yet been processed so as to be capable of execution by law enforcement authorities. 2 1998). "It is well-settled that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot." In the Interest ofS. J., 551 Pa. 637, 642, 713 A.2d 45, 47 (1998). Stated otherwise, "[i]n order to justify [an investigative detention] under the Fourth Amendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot." Commonwealth v. Diaz, 442 Pa. Super. 238, 252, 659 A.2d 563,570 (1995) (citation omitted). In the present case, the reported theft of videotape items earlier in the day in the neighborhood where Defendant was found at 11:30 p.m. carrying a bag of such items, and information from other officers which reasonably caused the affiant to conclude that a bench warrant may have been outstanding for Defendant, constituted specific and articulable facts which, in the court's view, led to a rational belief on the officer's part that criminal activity might be afoot and justified a brief detention of Defendant to investigate the matter further. For this reason, the court is unable to agree that evidence against Defendant should be suppressed as the result of an unlawful investigative detention. It also appears to be the law in Pennsylvania that justification for a pat down of a suspect's outer garments for an officer's safety during the course ora lawful investigative detention is dependent upon the existence of specific and articulable facts leading the officer "to reasonably believe that the suspect may be armed and dangerous." In the Interest ofS. J., 551 Pa. 637, 643, 713 A.2d 45, 48 (1998). The officer's good faith with respect to his conduct is not an issue. Commonwealth v. Mesa, 453 Pa. Super. 147, 152, 683 A.2d 643,646 (1996). On this point, the court concludes that the Commonwealth has failed to meet its burden of proof. There was no special likelihood on the occasion of Defendant's detention that he was armed and dangerous, and to hold otherwise would, in the court's view, fail to 3 adhere to the principle recited above out of respect for the officer's obvious good faith in acting as he did. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 14th day of July, 1999, upon consideration of Defendant's omnibus pretrial motion for relief in the form of a motion to suppress, following a hearing and for the reasons stated in the accompanying opinion, the motion is granted to the extent that evidence resulting from the affiant's pat down of Defendant's person is suppressed. BY THE COURT, Will I. Gabig, Esq. Senior Assistant District Attorney For the Commonwealth Arla M. Waller, Esq. Assistant Public Defender For the Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J.