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HomeMy WebLinkAbout98-0360 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 98-0360 CRIMINAL : DAVID D. STEFANIC : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER AND NOW, this ~- ~- ff day of July, 1998, the defendant's omnibus pretrial motion in the nature of a motion to suppress evidence is DENIED. BY THE COURT, Mary-Jo Mullen, Esquire Assistant District Attorney Ellen Barry, Esquire Assistant Public Defender K~Hess, J. ' ~ :rim COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : 98-0360 CRIMINAL : DAVID D. STEFANIC : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER On January 9, 1998, at approximately 8:35 p.m. in the 100 Block of Bridge Street in New Cumberland, PA, Officer James D. Bums of the New Cumberland Police department pulled over a vehicle in which the defendant, David D. Stefanic, was a back seat passenger. Officer Bums initially pulled the car over because its registration was out of date. He determined that the driver was under the influence of alcohol and arrested him for DUI. The front seat passenger was also arrested because a bench warrant was outstanding for his arrest. At some point during the stop officer Bums radioed for assistance. The driver and front seat passenger were taken to the police car, and the defendant was asked to exit the vehicle. Officer Bums, accompanied by officer Nailor, then asked the defendant if he had any weapons on him. The defendant replied that he had a switchblade in his jacket pocket. Officer Bums felt an object in his pocket that had the .shape and feel of a knife by touching it through the outside of the jacket. As he took the knife from the defendant's pocket, the defendant advised him to be careful because the locking mechanism was malfunctioning. The defendant was then asked if he had any drugs. He replied that he had a small amount of marijuana' in his front pants pocket. This Officer Bums then 98-0360 CRIMINAL retrieved. The defendant was subsequently arrested for a violation of 18 Pa.C.S.A. Section 908, possession of offensive weapons, and 35 P.S. Section 780-113 (a)(31), possession of a small amount of marijuana. The primary issue in the case sub judice is whether officer Bums asking the defendant if he had any weapons or drugs during the traffic stop and the defendant's subsequent relinquishment of those items constituted an unlawful seizure. We find the Superior Court's reasoning in Commonwealth v. Prosek, 700 A.2d 1305, (Pa. Super. 1997) and Commonwealth v. Hoak, 700 A.2d 1263, (Pa. Super. 1997) controlling. We are satisfied that the defendant was never in custody and Miranda rights never attached to him when he answered officer Bums' questions. In determining that Miranda rights never attached to the defendant "[t]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Hoak, supra. We specifically found that it is not constitutionally impermissible per se for a police officer to ask questions of, or seek cooperation from, a citizen detained pursuant to a lawful stop. Hoak, supra." Prosek at 1309 To stop and frisk a suspect, "[t]he officer must have reasonable suspicion, based upon specific and articulable facts, that 1) criminal activity may be afoot and 2) the suspect is armed and dangerous." Commonwealth v. Graham, 454 Pa. Super. 169, 177, 685 A.2d 132, 136 (1996). (citing Commonwealth v. Robinson, 410 Pa. Super. 614, 618-20, 600 A.2d 957, 959 (1991).) 2 98-0360 CRIMINAL Additionally, it is important to note that "[a]bsent some coercive conduct by police, a request for cooperation does not automatically convert an undeniably permissible encounter into an illegal seizure. Hoak, supra." Prosek at 1309. To determine whether a person has been seized by police there must be "an objective reason to believe they are not free to end their conversation with police and proceed on their way." Hoak at 1266 (citing United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).) Applying Mendenhall's objective test to the facts of the case sub judice, we can find no conduct by police that would allow us to conclude that the defendant was seized for purposes of the Fourth Amendment. The defendant does not allege that the initial stop of his companion's vehicle was unlawful. Therefore, Officer Bums' questioning of the defendant pursuant to that lawful stop was constitutionally permissible. The police did not display a weapon or hold the defendant's identification. Officer Bums merely asked the defendant to exit the vehicle after the driver and front seat passenger had been taken into custody. This is neither unreasonable nor coercive conduct on the part of the police. Therefore, when the defendant answered Officer Bums' questions, he was not in custody. As a result of that questioning, Officer Bums learned that the defendant was armed with a switchblade, and therefore could reasonably infer that the defendant was dangerous. "[T]he law is undisputed that the intent to do bodily harm may be inferred solely from the fact that [a person] carries a weapon, deadly in character upon his person." Commonwealth v. Spriggs, 224 Pa. 98-0360 CRIMINAL Super. 76, 78, 302 A.2d 442, 443 (1973)I. Based on the defendant's answers to Officer Bums' questions, it was also reasonable for Officer Bums to frisk the defendant for weapons, for he could infer that the defendant was armed and dangerous. Officer Bums could also reasonably believe that criminal activity was afoot, for the defendant had admitted to carrying a deadly weapon and possessing marijuana. Based on the defendant's answers, Officer Bums was justified in searching the defendant. Therefore, the switchblade and drags found pursuant to this search should not be suppressed. ORDER AND NOW, this Z 2-~~'~ day of July, 1998, the defendant's omnibus pretrial motion in the nature of a motion to suppress evidence is DENIED. Mary-Jo Mullen, Esquire Assistant District Attorney Ellen Barry, Esquire Assistant Public Defender BY THE COURT, Hess, J. :rlm ~The fact that the defendant surrendered the knife with apparent alacrity and even expressed concern for the officer's safety militate against the conclusion that this particular defendant was a threat. We apply the influence in S d_p__fi_g~, nonetheless. 4