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HomeMy WebLinkAbout98-0113 CriminalCOMMONWEALTH Vo LAWRENCE ROOSEVELT GELZER OTN: E930471-3 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 98-0113 CRIMINAL TERM : : CHARGE: UNLAWFUL POSSESSION OF : SMALL AMT. OF MARIJUANA IN_RELD~NTi S SS ORDER~ AND NOW, this~O'[~ day of April, 1998, upon consideration of Defendant's Motion To Suppress, following a hearing and for the reasons stated in the accompanying opinion, Defendant's motion is granted and all evidence obtained following the issuance of a warning to Defendant for speeding is suppressed. BY THE COURT, ;Wesley ~I~., . ' Travis N. Gery, Esq. Assistant District Attorney For the Commonwealth H. Anthony Adams, Esq. Assistant Public Defender For the Defendant COMMONWEALTH LAWRENCE ROOSEVELT GELZER OTN: E930471-3 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 98-0113 CRIMINAL TERM : : CHARGE: UNLAWFUL POSSESSION OF SMALL AMT. OF MARIJUANA IlbLRE:_DEFF_~DAIST'S MOTION_TO SUPPRESS OLER, J., April 30, 1998. In this criminal case, Defendant is charged with unlawful possession of a small amount of marijuana? The charge arose out of a search of a vehicle which he was driving on the Pennsylvania Turnpike. Presently before the court is a motion to suppress evidence, based upon the alleged illegality of the search. The primary issue is whether Defendant's consent to the search was invalid as the result of an unlawful prolongation of a traffic stop. A hearing on Defendant's motion was held on Monday, April 20, 1998. For the reasons stated in this opinion, Defendant's motion will be granted. STATEMENT OF FACTS On Saturday, January 10, 1998, at about 10:30 p.m., Defendant was driving an Oldsmobile Delta automobile with New York license plates east on the Pennsylvania Turnpike in West Pennsboro Township, Cumberland County;2 a passenger by the name of John Davis was with him.3 He was stopped by a Pennsylvania state trooper operating a radar See Act of April 14, 1972, P.L. 233, § 13(a)(31), as amended, 35 P.S. § 780- 13(a)(31). 2 N.T. 3-4, 10-11, Suppression Hearing, April 20, 1998 (hereinafter N.T. ). 3 N.T. 10-11. unit for speeding at the rate of 78 miles per hour in a 65 mile-per-hour zone? Upon request, Defendant supplied his driver's license, vehicle registration card, and insurance card to the trooper? The trooper also obtained the driver's license of Mr. Davis.6 While at Defendant's vehicle, the trooper observed a large roll of ordinary duct tape on the rear floor of the car;7 a piece of duct tape had been used to repair something loose on the dash.8 He also noticed a quarter-inch remnant of a small, brown, unfiltered cigarette in the vehicle's ashtray, which he suspected might have been the remains of a marijuana cigarette? It was not in fact a marijuana cigarette.~° The trooper returned to his police cruiser and ran an NCIC check to determine whether either individual was wanted and whether the car was stolen.~ He learned that neither individual was wanted and that the car was not stolen; Defendant's license, registration card, and insurance card were valid?2 While in his patrol car, the trooper summoned a second state trooper to the scene.~3 When the second trooper arrived, the trooper reapproached Defendant's car, asked him to 4 N.T. 4, 26-27. 5 N.T. 4-5, 16. 6 N.T. 6-7, 10. 7 N.T. 5, 16-17. 8N.T. 17. 9 N.T. 6. l0 N.T. 17. ~ N.T. 6-7. ~z N.T. 7, 16, 25. ~3 N.T. 6, 25. 2 exit the vehicle, and had him stand in front of the first patrol car, facing away from his automobile.TM The trooper's intent was to separate Defendant from the passenger for the purpose of questioning him.~5 The second trooper watched Defendant and the passenger as Defendant was being questioned.~6 Without telling Defendant that he was free to leave,~7 the trooper gave him a written warning for speeding, returned his and the passenger's documents to him, and requested that he answer some questions? Specifically, the trooper testified as follows: Q What did you do at that point? A At that point I stated to the Defendant before the left, if you wouldn't mind answering a couple questions, which he stated that he would.19 Defendant was questioned for between ten and fifteen minutes? He stated that he was driving his uncle, who lived in Pittsburgh, to New York to visit family members? The trooper noticed that Defendant's passenger frequently turned in his seat to look back at them as Defendant was being questioned? He also felt that Defendant needed to refer to the l'~ N.T. 7. Is N.T. 19-21. ~6 N.T. 25. 17 N.T. 23. 18 N.T. 7-8. ~9 N.T. 8. 2o N.T. 21. 2~ N.T. 8. 22 N.T. 11. 3 passenger's driver's license to give the passenger's correct name? Defendant, in response to questioning, said that he was an unemployed bridge painter? He said that he had driven to Pittsburgh from New York that morning for the purpose of transporting his uncle back to New York, that he had no luggage in the vehicle, and that some new clothes which he had purchased in Pittsburgh were in the trunk? The trooper questioned Defendant as to how he could afford new clothing when he was unemployed.26 Defendant responded that the money came from savings? The trooper also questioned the passenger outside the presence of Defendant? Mr. Davis said that he was on his way to New York to visit his mother, that he did not have any luggage, and that some of the clothing in the trunk had been purchased by him in Pittsburgh.29 Contrary to what Defendant said, Mr. Davis told the trooper that Defendant had been with him in Pittsburgh for the previous two weeks? The trooper made a decision to conduct a police search of the vehicle if he could obtain consent from Defendantfi~ The trooper asked Defendant if the vehicle contained "any illegal weapons, 23 N.T. 10. 2~ N.T. 8-9. 25 N.T. 8. 26 N.T. 9. 27 Id. 28 N.T. 10. 29 N.T. 10-11. 30 N.T. 10. 3~ N.T. 26. contraband, drugs, large sums of monies.''32 Defendant said that it did not.33 The trooper asked Defendant for consent to search the vehicle, and Defendant said that he could go ahead and could use a canine? When the trooper said that he would not use a canine, Defendant apparently changed his mind about authorizing a search? Upon being told that a canine would be summoned but that this would occasion a delay of up to an hour and a half in the search,36 Defendant indicated that such a delay would not be acceptable and that the police "were to go ahead and look in the vehicle.''37 He responded affirmatively to two additional requests for consent to search the vehicle.38 A search of the trunk disclosed two packets of currency, which did not belong to Defendant, in a coat which was in a gym bag which was in a shopping bag.3° Found in another shopping bag, which held dirty clothes, was a clear plastic baggie containing a small amount of marijuana, acknowledged by Defendant to be his? The trooper denied that Defendant's race (black) had played a part in his suspicion of misconduct.4t He pointed out that he had had no way of knowing the race of the individuals 32 N.T. 12. 33 Id. 34 35 Id. 36 N.T. 22-23. 37 N.T. 12. 38 N.T. 23. 39 N.T. 13-15. 4° N.T. 15. 4~ N.T. 18. 5 he was stopping at that time of night? An objection to a question by Defendant's counsel as to the relative number of searches of vehicles of blacks and whites by the trooper was sustained by the court.43 At a suppression hearing, the Commonwealth bears the burden of proving that the challenged evidence was lawfully obtained. Pa. R. Crim. P. 323(h). It is clear in this case that the police did not have a warrant to search Defendant's vehicle. Nor is it suggested by the Commonwealth that the trooper had probable cause to search the car; in this regard, the presence of duct tape and a quarter inch of a hand rolled cigarette in the vehicle would not ordinarily furnish such probable cause. See Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979); Commonwealth v. Phillips, 225 Pa. Super. 126, 310 A.2d 290 (1973). However, it has been said that the government may search a vehicle without a warrant or probable cause if the owner of the vehicle validly consents to the search. Commonwealth v. Yedinalc, 450 Pa. Super. 352, 358, 676 A.2d 1217, 1220 (1996), appeal denied, 548 Pa. 618, 693 A.2d 588 (1997). As a general rule, consents to searches during illegal detentions have been held invalid. See, e.g., Commonwealth v. Helm, 456 Pa. Super. 370, 690 A.2d 739 (1997); Commonwealth v. Jackson, 428 Pa. Super. 246, 630 A.2d 1231 (1993), appeal denied, 537 Pa. 647, 644 A.2d 733 (1994); Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992); Commonwealth v. Leius, 43 Cumberland L.J. 459 (1994). "' [W]hen conducting a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check and issue a citation .... [U]pon producing a 4z Id. 43 Id. 6 valid driver's license and registration, the driver must be allowed to proceed' without 'being subject to further delay by police for additional questioning.'" Commonwealth v. Talley, 430 Pa. Super. 351,356, 634 A.2d 640, 642 (1993), quoting Commonwealth v. Lopez, 415 Pa. Super. 252, 261,609 A.2,d 177, 181-82, appealdenied, 533 Pa. 598, 617 A.2d 1273 (1992).4~ A detention continues beyond that point when, in view of all the circumstances surrounding the incident, a reasonable person in the defendant's position would have believed that he was still not free to leave. See Commonwealth v. Matos, 543 Pa. 449, 457-58, 672 A.2d 769, 774 (1996). A traffic stop commences with a seizure of a driver, and, absent special circumstances, the propriety of an extension of police involvement with the driver upon completion of the purpose of the stop depends upon a perceptible change in the status quo whereby a reasonable person in the driver's position would believe that he or she was now free to leave. Such a change may be found where the driver is expressly told by the police that he or she is free to go. See, e.g., Commonwealth v. Hoak, __ Pa. Super. ,700 A.2d 1263 (1997); Commonwealth v. Beers, No. 97-1983 Criminal Term (Cumberland County) (January 20, 1998) (Bayley, J.); contra, State v. Retherford, 93 Ohio App. 3d 586, 639 N.E.2d 498 (1994). The expression of this right has been commended to officers as a means of defining the status of the person. Commonwealth v. Jones, 474 Pa. 364, 373 n.7, 378 A.2d 835, 840 n.7 (1977), cert. denied, 435 U.S. 947, 98 S. Ct. 1533, 55 L. Ed. 2d 546 (1978). In the absence of such a statement, one must examine other circumstances. In the 44 "In order to justify detention 'for further questioning, the officer must have reasonable suspicion of illegal transactions in drugs or of any other serious crime.'" Commonwealth v. Talley, 430 Pa. Super. 351,356, 634 A.2d 640, 643 (1993), quoting Commonwealth v. Lopez, 415 Pa. Super. 252, 261,609 A.2d 177, 181-82, appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992). The court does not believe that this justification for a detention beyond the traffic stop can be found from the presence of duct tape and a remnant of a cigarette in the vehicle. An investigative detention must be based upon more than a police officer's hunch. Id. present case, where a second trooper was summoned to the scene and remained after the purpose of the traffic stop had been completed, where Defendant was removed from his vehicle and separated from the passenger for purposes of questioning by the trooper who had stopped him, and where Defendant was not advised that his status as a detainee had terminated, the court does not believe that the Commonwealth has met its burden of showing a perceptible change in the status quo which would have led a reasonable person in Defendant's position to believe that he was free to leave. For this reason, Defendant's consent to the search of the vehicle, occurring during the unlawful prolongation of a traffic stop, was not valid, and the evidence obtained as a result of the search must be suppressed. ORDEROJ7 C_OURT AND NOW, this 30th day of April, 1998, upon consideration of Defendant's Motion To Suppress, following a hearing and for the reasons stated in the accompanying opinion, Defendant's motion is granted and all evidence obtained following the issuance of a warning to Defendant for speeding is suppressed. BY THE COURT, Travis N. Gery, Esq. Assistant District Attorney For the Commonwealth H. Anthony Adams, Esq. Assistant Public Defender For the Defendant /s/J. Wesley Oler Jr. J.