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HomeMy WebLinkAbout01-2318 CriminalCOMMONWEALTH V. CULTON MCKIE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-2318 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT Currently before us is defendant's omnibus pretrial motion to suppress evidence. An evidentiary hearing was held on February 7, 2002. For the reasons hereinafter set forth, the motion will be denied. F1NDINGS OF FACT On November 2, 2001, Carlisle Police Corporal Michael Dzezinski was operating a marked patrol vehicle on routine patrol in the borough. At about 10:25 p.m., he noticed the defendant in a parked vehicle with three (3) other occupants. When the defendant saw the patrol vehicle, he quickly pulled away from the curb and sped off. As the defendant's car approached a nearby intersection, it slowed down, but did not stop, for a posted stop sign. The corporal began to follow the vehicle, which was travelling at a high rate of speed. Again the vehicle slowed down, but did not stop, as it went through another intersection controlled by a stop sign. At that point, Corporal Dzezinski initiated a traffic stop. As the corporal approached the vehicle, he noticed that it was occupied by the defendant and three (3) juveniles. The defendant was driving. The corporal also NO. 2001-2318 CRIMINAL TERM recognized the vehicle as belonging to a Hazel Massey. ~ The defendant indicated that he had Ms. Massey's permission to drive the vehicle. The defendant became very nervous when he was asked to produce his driver's license. He did not produce a driver's license nor did he give any explanation as to why he did not have one with him. He did identify himself as a Culton Mackie and spelled his last name "M-a-c-k-i-e.''2 It was clear to the corporal that the other three (3) occupants in the vehicle were juveniles. He became increasingly suspicious when he asked one of the juveniles to confirm the defendant' s name. The juvenile responded that he did not know the defendant's name. At that point, the corporal called for assistance to complete the traffic stop.3 When the other officers arrived, the juveniles and the defendant were asked to exit the vehicle. The juveniles were taken into custody by one of the other officers as Corporal Dzezinski continued with the traffic stop. During the initial phase of the stop, the corporal had noticed a large wad of cash in the defendant's right front shirt pocket. After the defendant got out of the vehicle, the corporal asked him if he had anything illegal on him. The defendant indicated that he did not and volunteered to allow the officer to search him. As he was being searched, he held the money from his shirt pocket in his hand. The corporal found nothing illegal on the defendant. He then asked if he could check the money. The defendant said no. ~ The corporal ran the vehicle registration later in the stop to confirm that the vehicle did, in fact, belong to Ms. Massey. : The defendant's last name is in fact spelled McKie. ~ The Corporal confirmed the ages and identities of the juveniles and determined that they were in violation of the Borough's juvenile curfew ordinance. NO. 2001-2318 CRIMINAL TERM Corporal Dzezinski then asked the defendant "if he had any guns, drugs or a bazooka" in the car. The question was asked in a conversational tone and the officer laughed as he made the quip about the bazooka. The defendant's response was "No. You can check the car". The officer said, "You mean I can search the car?" The defendant responded "Yeah". As he was searching the vehicle, the officer found a second bundle of cash between the driver's seat and the console. As he put the cash on the roof of the vehicle, the defendant exclaimed "Oh my God!" Another officer found drugs, including pre- packaged crack cocaine, inside the vehicle on the passenger side. At that point, the defendant was placed under arrest. CONCLUSIONS OF LAW (1.) The stop was lawful in that Corporal Dzezinski had probable cause to believe that the defendant had committed stop sign violations under Section 3323(b) of the Motor Vehicle Code.4 (2.) The consent to search the vehicle was voluntarily given. DISCUSSION Corporal Dzezinski was able to articulate specific facts to establish that he had probable cause to believe that the defendant had violated Section 3323(b) of the Motor Vehicle Code. Commonwealth v. Witmire, 542 Pa. 545, 668 A.2d 1113 (1995). While the defendant does not contest the stop of the vehicle, he does contest its search. He contends that he did not consent to the search of the vehicle, and if he did, the consent 4 75 Pa. C.S.A. § 3323(b). NO. 2001-2318 CRIMINAL TERM was not voluntarily given. We have found as a fact that the defendant did consent to the search of the vehicle. Therefore, we will focus our attention upon whether the consent was voluntarily given. It is well settled that if a person voluntarily consents to a search, the evidence found as a result thereof may be used against him. Commonwealth v. Washington, 438 Pa. Super. 131, 651 A.2d 1127 (1994). The burden is on the Commonwealth to prove that the consent was in fact voluntary and not the product of duress or coercion. Id. The question of whether a consent to search is voluntary "is a question of fact to be determined from the totality of all the circumstances." Commonwealth v. Hubbard, 472 Pa. 259, 274-275, 372 A.2d 687, 693-694 (1977). The facts in the case before us are similar to those in Commonwealth v. Washington, supra, where the Superior Court found a consent to be voluntary when given without any request from the police. As the Court noted. ... upon being stopped by police, appellant inquired as to the reason for his being stopped. When told that there were warrants outstanding for his arrest and that he was the subject of a drug investigation, appellant angrily told the police that they could search his vehicle. There was no request by police to conduct a search, nor is there any evidence that appellant was coerced in any way. The police had lawful reason to stop appellant's vehicle; and, thereafter, they merely responded to appellant's inquiry as to why he was being detained. Under these circumstances, we agree with the trial court that appellant acted voluntarily when he told police that they could search his vehicle. 651 A.2d at 1131. Likewise, in the instant case, there was no request by the police to conduct a search, nor was the defendant coerced in any way. Furthermore, it is obvious that he was aware that he could withhold his consent if he so desired. He refused to allow the police to check NO. 2001-2318 CRIMINAL TERM the money he took from his pocket during the search of his person. Therefore, based upon the totality of the circumstances, we are satisfied that his consent to search the vehicle was voluntary. For the reasons set forth above, we find that the police made a valid investigatory stop and conducted a valid consent search of the defendant's vehicle. Therefore, his motion to suppress evidence will be denied.5 ORDER OF COURT AND NOW, this 15TM day of FEBRUARY, 2002, the Defendant's Motion to Suppress Evidence is DENIED. By the Court, District Attorney Arla M. Waller, Esquire For the Defendant :sld /s/Edward E. Guido Edward E. Guido, J. s The defendant also seeks to suppress as "fruit of the poisonous tree" certain post arrest evidence obtained by the police. FFongSunv. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d441 (1963). The defendant has conceded that this argument is based solely upon the non-consensual nature of the search of his vehicle. Since we have found that the search was conducted pursuant to a voluntary consent, the "fruit of the poisonous tree" challenge must fail.