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HomeMy WebLinkAboutCP-21-CR-2892-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ROBERT GEORGE HENRY : CP-21-CR-2892-2007 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., September 15, 2008:-- May 27, 2008 On , defendant was convicted at a bench trial on Count I of unlawful manufacturing and possession with intent to deliver a schedule I controlled 12 substance; on Count II of unlawful possession of a schedule I controlled substance; 3 on Count III of unlawful possession of drug paraphernalia; on Count IV of driving under 4 the influence of a controlled substance; and on Count VI of failure to drive within a 5 July 22, 2008 marked lane of traffic. All of the drug charges involved marijuana. On , defendant was sentenced on Count IV for driving under the influence of a controlled substance to pay the costs of prosecution, a $1,000 fine, and undergo imprisonment in the Cumberland County Prison for not less than seventy-two hours or more than six __________ 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(16). 3 35 P.S. § 780-113(a)(32). 4 75 Pa.C.S. § 3802(d)(1). 5 75 Pa.C.S. § 3309. CP-21-CR-2892-2007 months minus one day. He was sentenced on Count I for unlawful possession with intent deliver a controlled substance to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for not less than nine months or more than eighteen months, with credit for one day served, to run consecutive to the first sentence. Defendant was sentenced to pay the costs of prosecution and a fine of $25 for failure to drive within a marked lane of traffic. On the other drug convictions, he was sentenced to pay the costs of prosecution. Defendant filed a direct appeal to the Superior Court of Pennsylvania from the judgments of sentence. In a concise statement of errors complained of on appeal, he avers: A. WHETHER THE DEFENDANT’S DRUG CHARGES SHOULD HAVE BEEN DISMISSED BECAUSE HE HAS A CONSTITUTIONAL RIGHT UNDER THE FREEDOM OF RELIGION CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS TO CULTIVATE, POSSESS AND USE CANNABIS IN THE FURTHERANCE OF THE EXERCISE OF HIS PERSONAL RELIGIOUS BELIEFS AS A MEMBER OF THE HAWAII CANNABIS MINISTRY AND AS AN ORDAINED MINISTER WITH THE UNIVERSAL LIFE CHURCH? B. WHETHER THE TRAFFIC STOP ON THE DEFENDANT’S VEHICLE AND THE ENSUING DETENTION, SEARCH AND ARREST VIOLATED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS? C. WHETHER THE POLICE ACTED IN BAD FAITH AND MADE AN ILLEGAL PRETEXTUAL STOP AND SEARCH OF THE DEFENDANT’S VEHICLE IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS? February 21, 2008 On , defendant filed an omnibus pretrial motion for relief upon March 4, 2008 which a hearing was called on . The omnibus motion included a motion to dismiss on constitutional grounds, and a motion to suppress evidence which -2- CP-21-CR-2892-2007 included averments that the traffic stop of defendant, (a) was unconstitutional and therefore the search of his vehicle was illegal, and (b) there was a “bad faith pretextual stop, detention and arrest” requiring suppression of all evidence obtained by the police. At the commencement of the hearing, defendant withdrew the motion to suppress evidence and the following order was entered. th AND NOW, this 4 day of March, 2008, this matter having been called on a hearing to include a motion of defendant to suppress evidence challenging the legality of the stop and the seizure of evidence in this case, and defendant having appeared and withdrawing the motion at this time, the motion IS DISMISSED. On the request of defendant, the hearing on his motion to dismiss on th constitutional grounds was continued to April 16, 2008. After that hearing on April 16, the following order was entered: th AND NOW, this 16 day of April, 2008, the motion to dismiss, IS DENIED. Defendant’s concise statement of errors complained of on appeal alleging error in not suppressing evidence on issues that he waived on March 4, 2008, is inexplicable. We need not address them. We will address his claim which was dismissed following a pre-trial hearing that he has a constitutional right to cultivate, possess and use cannabis in furtherance of the exercise of his personal religious beliefs. The evidence at trial was that on October 10, 2007, Trooper Rodney Fink of the Pennsylvania State Police, stopped a vehicle defendant was driving on Route 641 in -3- CP-21-CR-2892-2007 Cumberland County. He smelled a strong odor of raw and burnt marijuana as he approached the vehicle. The trooper saw through the back window what appeared to be a marijuana plant sticking out from underneath a blanket or a shirt. Defendant showed classic signs of intoxication. He told Trooper Fink that he had just smoked some marijuana in a pipe and that there was more marijuana in the vehicle. Defendant was taken to a hospital where his blood was drawn. It contained Delta-9- tetrahydrocannabinol, 3 nanogram/mL; 11-nor-delta-9-tetrahydrocannabinol-9- carboxylic acid, 19 nanogram/mL. Defendant’s vehicle was towed and a search warrant was obtained. A search resulted in the seizure of four small baggies of marijuana in a can in the center console, a pipe and rolling paper in that area, the marijuana plant in the back of the vehicle, and two large plastic bags of marijuana behind the seats. There was a total of 27 grams of marijuana in the four plastic bags and a total of 232 grams of marijuana in the two large plastic bags. Defendant’s wallet, which was on the front passenger seat when he was stopped contained $1,853 in cash. Defendant averred in his omnibus pretrial motion to dismiss: Defendant has been a member in good standing of the Hawaii Cannabis Ministry and is now an ordained minister with the Universal Life Church. The Hawaii Cannabis Ministry is a religious organization based in the state of Hawaii and dedicated to a belief in the sacrament of Cannabis. As a member of the Hawaii Cannabis Ministry and as an ordained minister, the Defendant believes and therefore avers that he is entitled to cultivate, possess and use cannabis in the furtherance of the exercise of his personal religious beliefs in accordance with the state and federal constitutions. -4- CP-21-CR-2892-2007 Article I, Section 3 of the Pennsylvania Constitution provides in pertinent part as follows: All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; . . . no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship. The first Amendment to the United States Constitution provides as follows in relevant part: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . Laws of general applicability that burden a citizen’s free exercise of religion must be proven by the Commonwealth to be in furtherance of a compelling government interest and be the least restrictive means of furthering that compelling interest, 71 Pa.C.S.A. 2404. The provisions of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act under which the Defendant has been charged are not the least restrictive means of advancing the Commonwealth’s interest in the health and safety of its citizens, including the Defendant, in light of a citizen’s conscious choice to practice a religion that includes cannabis cultivation, possession and use as a key tenant of the practice of the religion. Defendant’s religion of choice is the Hawaii Cannabis Ministry, which hold cannabis cultivation, possession and use is an integral part of the religious faith and that its prohibition by the Commonwealth results in a virtual inhabitation of the religion or the practice of the faith by its members and ministers, including the Defendant. The Hawaii Cannabis Ministry believes that cannabis is a sacrament in the same way, for example, that Christianity believes that bread and wine are a sacrament. In certain Christian traditions, for example, minor children are permitted to drink wine, an alcoholic beverage, and neither they nor their parents or their ministers/priests are charged criminally with furnishing alcohol to minors in light of the constitutionally-protected free exercise of their religious beliefs. Any cannabis that the Defendant may have cultivated, possessed and/or used was in accordance with and in furtherance of the free exercise of his personal religious beliefs. WHEREFORE, Defendant, Robert G. Henry, for the foregoing -5- CP-21-CR-2892-2007 reason, respectfully requests that Your Honorable Court dismiss the charges against him because they have been brought in violation of the state and federal constitutions. -6- CP-21-CR-2892-2007 At the omnibus pre-trial hearing, defendant, age 48, testified that he started smoking marijuana when he was thirteen years old. He smokes marijuana on a daily basis. He has “come to the belief that me smoking cannabis helps me commune with my Lord and understanding what he wants me to do in my life” – “I just think – I just feel it helps me to get in tune with my Lord better. I’m a natural person, and I’m not sure how to say what I need to say here.” “The first thing I do everyday when I get out is I smoke a little bit of cannabis, and I say my daily prayers for the day and look for direction for how I should spend my day.” He does the same in the evening. He is a subscriber to the magazine High Times, and through that publication became aware of the THC Hawaii Cannabis Ministry in December, 2007. He talked on the phone to the founding minister and became a member on January 14, 2008. On January 15, 2008, he was ordained through the mail as a minister in the Universal Life Church of Modesto, California. As a minister he will be able to start his own church locally. Defendant testified that the laws of the Commonwealth of Pennsylvania hinder his ability to pursue practicing his religious beliefs. The first thing to note is that defendant’s “religious affiliations,” and we use the term loosely, came late. He was arrested on October 10, 2007. He says he joined the THC Hawaii Cannabis Ministry in December, 2007, and was ordained in the cannabis ministry of the Universal Life Church in Modesto, California, on January 15, 2008. It does not make any difference. Defendant maintains that it was error not to dismiss the “drug charges” against -7- CP-21-CR-2892-2007 him “because he has a constitutional right under the freedom of religion clauses of the State and Federal Constitutions to cultivate, possess and use cannabis in the furtherance of the exercise of his personal religious beliefs as a member of the Hawaii Cannabis Ministry and as an ordained minister with the Universal Life Church.” Neither constitution affords defendant relief. Article 1, Section 3, of the Pennsylvania Constitution states: All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences . . . no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship. Pa. Const. art. I, § 3. The First Amendment to the United States Constitution provides, in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” Although the language of the two constitutions is not identical, defendant’s claims may be made in a single analysis under the First Amendment of the United States Constitution. The Supreme Court of Pennsylvania has stated, “[t]he protection of rights and freedoms secured by this section [Article 1, Section 3] of our Constitution . . . does not transcend the protection of Wiest v. Mt. the First Amendment of the United States Constitution.” -8- CP-21-CR-2892-2007 Lebanon School District 6 , 457 Pa. 166, 174, 320 A.2d 362, 366 (1974). Consequently, no independent analysis with respect to the prohibitions of the Pennsylvania Constitution contained in Section 3, Article 1, need be undertaken. Employment Div., Dep’t of Human The Supreme Court of the United States, in Resources of Or. v. Smith , 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), addressed the question of whether or not the Free Exercise Clause of the First Amendment permits a state to prohibit, pursuant to its general criminal prohibitions, the Smith 7 religious use of a drug. , 494 U.S. at 874, 110 S.Ct. at 1597. The Court found Smith that a state may prohibit such conduct. , 494 U.S. at 878, 110 S.Ct. 1595 at __________ 6 Wiest In , the Court, after completing its analysis under the First Amendment of the United States Constitution, stated that that discussion was “equally apposite” to the Wiest claim under the Pennsylvania Constitution, , 457 Pa. at 174, 320 A.2d at 367, further emphasizing that an analysis of a free exercise claim under the First Amendment may serve equally as an analysis under the Pennsylvania Constitution. 7 In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) which Smith abrogated the rule announced in . Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” 42 U.S.C.A. § 2000bb-1. Subsection (b) sets forth that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The RFRA “applies to all Federal and State law . . . .” 42 U.S.C.A. § 2000bb-3(a). City of Boerne v. Flores However, the Supreme Court of the United States, in , 521 U.S. 506, 117 S.Ct. 2157, 138 L.Ed. 2d 624 (1997), held that the RFRA, as applied to the states, was beyond congressional authority and thus unconstitutional. Therefore, the RFRA need not be addressed in the instant matter. -9- CP-21-CR-2892-2007 8 1600. Smith In , the respondents were fired from their jobs for having ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which they were members. The respondents then applied to the petitioner, the Employment Division, for unemployment compensation but were determined to be ineligible for benefits because they had been fired for misconduct. On an initial appeal to the Supreme Court of the United States, the Court agreed with the petitioner’s claim that if a state’s criminal prohibitions on the use of peyote as applied to members of the Native American Church does not violate the First Amendment, then that state may deny unemployment benefits to those who engage in the prohibited conduct. However, because the Supreme Court of Oregon had not determined whether the respondent’s sacramental use of peyote violated Oregon law, the Court remanded the case for further proceedings. On remand, the Supreme Court of Oregon held that the respondent’s sacramental use of peyote was prohibited by Oregon law but concluded that such prohibition was unconstitutional under the Free Exercise Clause. The court therefore held that the respondent’s could not be denied unemployment benefits for their use of peyote. The Supreme Court of the United States reversed, holding that “[b]ecause __________ 8 See also Olsen v. Drug Enforcement Administration , 878 F.2d 1458 (D.C. Cir. 1990) (holding that the free exercise clause does not compel the DEA to grant an individual an exemption from prosecution for the illegal use of marijuana even when such use is prescribed by one’s bona fide religious beliefs). -10- CP-21-CR-2892-2007 respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from the Smith use of the drug.” , 494 U.S. at 890, 110 S.Ct. at 1606. In addressing the constitutionality of the Oregon law, the Court reasoned that “[t]he government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a Id governmental action on a religious objector’s spiritual development.” . at 885, 110 S.Ct. at 1603. Furthermore, the Court determined that “if prohibiting the exercise of religion . . . is not the object of [a law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Smith , 494 U.S. at 878, 110 S.Ct. 1595 at 1600. Additionally, “[a]n individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” Smith , 494 U.S. at 878-9, 110 S.Ct. at 1600. And finally, the Court noted the fact that it has “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground Smith that the law proscribes . . . conduct that his religion prescribes . . . .” , 494 U.S. at 879, 110 S.Ct. at 1600 (internal quotations omitted). sub judiceSmith In the case , defendant, like the respondent’s in , argues that -11- CP-21-CR-2892-2007 the Free Exercise Clause of the First Amendment of the United States Constitution confers upon him the right to use an illegal drug, cannabis in the instant matter, “in furtherance of the exercise of his personal religious beliefs . . . .” However, like the Smith statute at issue in , Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act is a neutral law of general applicability, the object of which is not the prohibition of an individual’s exercise of religion, and “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes . . . conduct that his religion prescribes.” Consequently, neither the United States Constitution nor the Pennsylvania Constitution confers upon defendant the right to “cultivate, possess and use cannabis 9 in furtherance of the exercise of his personal religious beliefs.” It was not error to deny __________ 9 Seediscussion of Wiest supra p. 2 and note 1. We further note that in his omnibus pretrial motion, defendant maintained that “[l]aws of general applicability that burden a citizen’s free exercise of religion must be proven by the Commonwealth to be in furtherance of a compelling government interest and be the least restrictive means of furthering that compelling interest” pursuant to Section 4 of Pennsylvania’s Religious Freedom Protection Act, 71 Pa.C.S.A. § 2404. However, defendant, as previously noted, was charged under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, and Section 6 of the Religious Freedom Protection Act, 71 Pa.C.S.A. § 2406, states: (a) General rule.--This act shall apply to any State or local law or ordinance and the implementation of that law or ordinance, whether statutory or otherwise and whether adopted or effective prior to or after the effective date of this act. Any law enacted by the General Assembly after the effective date of this act shall be subject to this act unless the General Assembly expressly excludes that law from this act by specific reference to this act. This act shall not apply to actions of the courts of this Commonwealth or to any rules of procedure or to common law adopted by the courts of this Commonwealth. (b) Exceptions.--Notwithstanding subsection (a) and subject to existing religious exceptions, this act shall not apply to any of the following: (1) Any criminal offense under 18 Pa.C.S. (relating to crimes and offenses) or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, which is graded as a felony or a misdemeanor. -12- CP-21-CR-2892-2007 defendant’s motion to dismiss on constitutional grounds. (Date) Edgar B. Bayley, J. Derek R. Clepper, Esquire For the Commonwealth George N. Marros, Esquire For Defendant :sal -13-