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HomeMy WebLinkAboutCP-21-CR-1383-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1383-2008 : : STEVEN SPRENKLE : IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION OPINION AND ORDER Before the court is the defendant’s omnibus pretrial motion in the nature of a motion to suppress evidence. The incident giving rise to the arrest of the defendant occurred on March 15, 2008. At that time, the arresting officer, Thomas Burrell, was acting in his capacity as a waterways conservation officer. He was also a patrol supervisor with the Pennsylvania Fish and Boat Commission. N.T. 3. His duties included the enforcement of the Fish and Boat Code though he is also authorized to enforce other criminal laws of the Commonwealth in the performance of his duties. N.T. 5. On the evening in question, Officer Burrell was operating a marked patrol vehicle along Big Spring Creek Road in Cumberland County. Upon arriving at a small parking lot owned by the Fish and Boat Commission, he noticed a vehicle parked with the dome light on. Officer Burrell expressed his concerns as follows: Being that time of night, it was dark. It is March, 9:30-ish. It is not a common time to have people at our property fishing. And there is no boating access on that stream. So that wasn’t an option. Furthermore, that particular parking lot access is a special regulation area. Meaning it is a section of stream that has had additional regulations placed on it for specific protection reasons. In that case the trout there are protected. And it has specific hours of fishing of one hour before sunrise to one CP-21-CR-1383-2008 hour after sunset. So there was no reason for me to believe that there was legal activity taking place in a car that was at that parking lot at that time of night. So I stopped in the parking lot to determine what they were doing. N.T. 6. Officer Burrell pulled into the parking area. While he did not park his vehicle so as to prevent the defendant from leaving, he did activate an emergency light on the roof of his vehicle “to make sure that whoever was in that vehicle knew that I was an officer walking up to them and not some stranger parking his car behind them.” N.T. 7-8. Upon approaching the vehicle, the defendant rolled his window down and it was then that the officer could smell the odor of alcohol and of burning marijuana coming from the defendant and the vehicle. As he spoke to the defendant, he became concerned that Mr. Sprenkle kept moving his hands towards the center console inside of the seat even though the officer cautioned him several times not to do so. As a safety measure, the defendant was ordered out of the vehicle and handcuffed. The passenger in Mr. Sprenkle’s vehicle was also handcuffed. Both were moved to the front of Officer Burrell’s vehicle so that he could keep them in his headlights. After handcuffing the occupants of the vehicle, Officer Burrell conducted a search of the front area of the vehicle around each of the front seats, specifically, an area that “they could possibly reach weapons from.” N.T. 11. In the course of the search, Officer Burrell found drug paraphernalia in the form of two pipes and a bottle of “mostly gone” whiskey as well as a receipt indicating the whiskey had been bought earlier that evening. Following the search of the vehicle and the arrival of Pennsylvania State Police, Officer Burrell noticed a plastic bag sticking out of the defendant’s jacket. Upon checking the bag, it was determined to contain a green leafy 2 CP-21-CR-1383-2008 substance which later tested positive for marijuana. According to Officer Burrell, at the time he found the plastic bag, the defendant “was moments away from being arrested in any event.” N.T. 12. This was by virtue of the drug paraphernalia which had been found in the vehicle. In addition to being arrested for drug paraphernalia, the defendant was also arrested for driving under the influence. A PBT test indicated that the defendant’s blood-alcohol was below the legal limit of .08, but Officer Burrell also had reason to believe that the defendant had consumed marijuana. In his omnibus pretrial motion, the defendant contends that his detention and the search of his vehicle were unlawful and that evidence flowing from same must be suppressed. We examine, first, the nature of the initial contact between Officer Burrell and the defendant. The courts have recognized three categories of encounters between citizens and the police, including: (1) a mere encounter; (2) an investigative detention; and (3) custodial detention. Com. v. Collins, 950 A.2d 1041 (Pa.Super. 2008). A mere encounter between citizens and police, or a request for information by police, does not need to be supported by any level of suspicion and does not carry any official compulsion to stop or to respond. Id. In Collins, the police conducted a “safety check” of a vehicle parked legally, after sundown, at a roadside location. The circumstances were almost identical to the matter sub judice. The trooper explained that the vehicle was not moving when he first saw it and did not attempt to leave as he approached. He parked his car to the side of the vehicle and his headlights were shining into the passenger compartment. He did not, however, block the vehicle from leaving. Upon approaching the front seat passenger of the vehicle, the trooper noticed the smell of marijuana and a bong between the seats. The Superior 3 CP-21-CR-1383-2008 Court described the initial interaction between the trooper and Collins as an “encounter” thus allowing for the conclusion that the bong was lawfully seized as being in plain view. In this case, there was no paraphernalia in plain view. Instead, the defendant was removed from his vehicle and handcuffed and the vehicle searched for the officer’s “safety.” Given that the officer had reason to believe that the defendant was smoking marijuana in his vehicle, we are satisfied that, as part of further investigation, the officer would have been within his rights to order the defendant to exit the vehicle. See Com. v. Bear, 654 A.2d 1058 (Pa.Super. 1994). In this case, however, the defendant was removed from the vehicle, handcuffed, and placed a substantial distance away. At the time the officer conducted the search, the defendant was no threat to the officer nor could he have reached for weapons or attempted to destroy contraband. The case of Com. v. Gelineau, 696 A.2d 188 (Pa.Super. 1997) is another case similar to the matter sub judice. In that case, a state trooper detected a strong odor of burnt marijuana emanating from the interior of a car. The defendant and his passenger were handcuffed and placed away from the vehicle. The officer told the defendant that they were going to search the vehicle and “if they did not find anything, the men would be free to go.” Id. at 188. In Gelineau, the court rejected the Commonwealth’s contention that, at the time of the search, the defendants were not under arrest. To the contrary, the court noted: Appellees were ordered out of their vehicle, patted down and handcuffed. They were then placed at a distance from their vehicle, denying them access to either the inside or outside of the vehicle. A finding by the trial court that appellees were effectively under arrest is supported by the record. Id. at 194. 4 CP-21-CR-1383-2008 In this case, the fact that the police officer effectively arrested the defendant prior to the search of the vehicle and prior to the discovery of any contraband makes this case more than problematic. This is so, in part, because the rules regarding searches incident to arrest differ as between Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. The distinctions were discussed in Gelineau as follows: A well-recognized exception to the warrant requirement is where the search is conducted incident to arrest. Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994) (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It is the precise scope of the search that has been the subject of much debate. The Supreme Court of our Commonwealth has consistently given greater deference to an individual’s privacy than has the United States Supreme Court. For example, in Timko, supra, [417 A.2d 620 (Pa. 1980)] our Supreme Court limited the warrantless search of an automobile incident to an arrest to areas and clothing immediately accessible to the person arrested. Id. at 37, 417 A.2d at 622. The purpose of this search is to prevent the arrestee from securing a weapon or destroying evidence of criminal activity. Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d Once the 128 (1995) (citing Timko, supra). danger is removed, a search of any property not immediately associated with the person of the arrestee to their exclusive control is no longer a search incident to the arrest. To the contrary, the United States Supreme Court held, one year later, in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that 5 CP-21-CR-1383-2008 automobile.” Id. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. Despite the holding in Belton, our Supreme Court stated in White, supra, [669 A.2d 896 (Pa. 1995)] its view that Timko is still the law of this Commonwealth regarding the scope of a search incident to arrest: It is axiomatic that the Supreme Court of Pennsylvania may provide more protection for the citizens of Pennsylvania under the Pennsylvania Constitution than the federal courts provide under the United States Constitution, and it is our view that the rule of Timko is as valid today as it was fifteen years ago when Timko was decided. In fact, the thrust of Timko is even more compelling today than it was in 1980 because this court has increasingly emphasized the privacy interests inherent in Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). By contrast, the United States Supreme Court has deemphasized the privacy interests inherent in the Fourth Amendment. As the Court stated in Belton: [T]he justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981). As we stated in Commonwealth v. Mason, 535 Pa. 560, n.3, 637 A.2d 251, n.3 (1993), this court, when considering the relative importance of privacy as against securing criminal convictions, has struck a different balance 6 CP-21-CR-1383-2008 than has the United States Supreme Court and under the Pennsylvania balance, an individual’s privacy interests are given greater deference than under federal law. White, supra, at 56, 669 A.2d at 902. (Emphasis supplied). Gelineau at 194-195. The Court, in Gelineau went on to uphold the suppression of evidence. In that case, however, the evidence suppressed had been seized from the engine compartment of the vehicle. In this case, the evidence seized by Officer Burrell was from the passenger compartment of the car and in the area where the occupants had been sitting. Pennsylvania clearly recognizes an “automobile exception” to the search warrant rule. The exception applies where there is probable cause to believe that an automobile contains evidence of criminal activity, the occupants of the automobile are likely to drive away, and the police could not have secured a warrant of exigent circumstances. See Com. v. Ionata, 544 A.2d 917 (Pa. 1988). In this case, the officer did not contend that he searched the vehicle in accordance with the automobile exception nor, for that matter, that he searched the vehicle incident to the defendant’s arrest. Instead, the vehicle was searched for “officer safety.” N.T. 10. Following the search of the vehicle, the officer then searched the defendant and discovered marijuana. This search was conducted because of the “arrest that was going to follow the discovery that we made in the vehicle.” N.T. 12. Because of the items found in the vehicle and on the defendant’s person, he was not only arrested for drug law violations but for driving under the influence. Based on an admixture of legal theories, the Commonwealth contends that the searches and seizures in this case were lawful. We cannot agree and analogize to the cases discussed earlier with regard to searches incident to arrest. 7 CP-21-CR-1383-2008 In the matter sub judice, the defendant’s vehicle was searched for the officer’s safety and specifically to prevent the defendant’s access to anything in the car which might be of danger to the officer. Prior to conducting this search, however, the defendant was handcuffed and removed a substantial distance from the vehicle and placed in a situation where he was no longer a danger to the officer. Given the interpretation by our courts of the Pennsylvania Constitution, we are constrained to conclude that the warrantless search of a motor vehicle for officer safety is not lawful when conducted at a time when the occupants of the vehicle no longer pose a threat. ORDER st AND NOW, this 31 day of October, 2008, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is GRANTED and all evidence seized from the defendant and from his vehicle is SUPPRESSED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel Sodus, Esquire Sr. Assistant District Attorney John Shugars, Esquire Assistant Public Defender :rlm 8 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1383-2008 : : STEVEN SPRENKLE : IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION ORDER st AND NOW, this 31 day of October, 2008, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is GRANTED and all evidence seized from the defendant and from his vehicle is SUPPRESSED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel Sodus, Esquire Sr. Assistant District Attorney John Shugars, Esquire Assistant Public Defender :rlm