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HomeMy WebLinkAbout02-2754 CriminalCOMMONWEALTH ANTHONY BRIAN NESMITH IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2754 CRIMINAL TERM MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., May 5, 2003:-- Defendant, Anthony Brian Nesmith, is charged with a count of unlawful possession of drug paraphernalia.~ He filed a motion to suppress evidence on which a hearing was conducted on April 1,2003. We find the following facts. Officer Adolfo Heredia of the Carlisle Borough Police was in a patrol vehicle around midnight on June 6, 2002. He saw a vehicle park in a dark public housing lot in the 100 block of Lincoln Street, which is in a section of the Borough with a high incidence of illegal drug activity and violence. Officer Heredia saw the driver leave the vehicle, walk to a residence, and then come back and get inside the vehicle. Officer William Miller, who was on foot patrol, went to the vehicle and talked to the driver. Officer Heredia went to the passenger side as "backup to assist Officer Miller." 2 There were four people in the vehicle. Officer Heredia talked with defendant who was in the backseat next to the passenger side window. Officer Miller and Officer Heredia asked the driver and defendant '~ 35 P.S. § 780-113(a)(32). 2 Officer Miller did not testify. Officer Heredia testified that before the vehicle parked in the lot it had been circling the area for some time. It is not clear from his testimony whether he saw that activity or whether it was seen by Officer Miller or by both officers. 02-2754 CRIMINAL TERM what they were doing. They gave inconsistent and deceptive answers.3 Officer Heredia had defendant get out of the backseat because (1) of the deception, (2) of the dangerousness of the area, (3) there were only two officers with no other officers in the area, and (4) he wanted to be sure that there were no weapons that he and Officer Miller did not know about. He patted down defendant for weapons, and felt what he believed was a "crack pipe" in defendant's right pant's pocket. He asked defendant if it was a crack pipe, and defendant said that the pants he was wearing were not his. Officer Heredia asked the same question again and defendant gave the same answer. The officer then reached into the pocket of defendant and took out a pipe which contained some crack cocaine. He arrested defendant for unlawful possession of drug paraphernalia. DISCUSSION Defendant maintains that the seizure of the pipe must be suppressed. When Officer Miller and Officer Heredia went to the vehicle in which defendant was a passenger, the driver had already parked in the lot, left the vehicle, walked to a residence, and came back and got inside the vehicle. Thus, there was no traffic stop. See Commonwealth v. Yohe, 49 Cumberland L.J. 100 (1999). The interaction between Officer Miller and the driver and Officer Heredia and defendant after they went to the vehicle was a mere encounter as there is no evidence that Officer Miller approached the vehicle for any reason other than wanting to know what the occupants were doing. Commonwealth v. Ellis, 541 3 This was the testimony of Officer Heredia although he did not state what the inconsistencies and deception were. -2- 02-2754 CRIMINAL TERM Pa. 285 (1995).4 A mere encounter is simply a request for information that does not have to be supported by any level of suspicion and carries no official compulsion to respond. Commonwealth v. Ellis, supra. We know that Officers Miller and Heredia requested information because they wanted to know what the people in the vehicle were doing. From their perspective they did not get answers that satisfied them. During this encounter Officer Heredia had defendant get out of the vehicle in order to pat him down "to make sure that there were no weapons that he and 4 There is no evidence that there were articulable reasonable grounds to suspect a violation of the cruising ordinance of the Borough of Carlisle. See Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995). Officer Heredia testified that he did not know if Officer Miller issued a citation or a warning to the driver for a violation of the cruising ordinance. Chapter 103-1 to 103-6 of the Borough Code. There is no evidence that Officer Miller even discussed the cruising ordinance with the driver. While the area in which Officer Heredia said the vehicle had been circling is in a designated area under the cruising ordinance, there is no evidence that the circling around the area as he described it was sufficient to form a reasonable belief that there was a violation of the specific provisions of the ordinance, that provides: CRUISING - Driving a motor vehicle on a street past a traffic control point, designated by a police officer, in the designated area three (3) or more times within any two (2) hour period from 9:30 p.m. to 4:00 a.m. Passing the control point a third time within such period shall constitute "crusing" [sic] and therefor a violation of this Chapter... TRAFFIC CONTROL POINT - A reference point on a street in a designated area selected by a police officer for the purpose of enforcing this Chapter. No driver of a motor vehicle.., shall cruise. -3- 02-2754 CRIMINAL TERM Officer Miller did not know about." That constituted an investigative detention.5 An investigative detention constitutes a seizure of the person and must be supported by reasonable suspicion based on specific and articulable facts that the person being detained is engaged in criminal activity. Commonwealth v. M¢Clease, 750 A.2d 320 (Pa. Super. 2000). The officers knew the following: (1) four people were in a vehicle around midnight in the Borough of Carlisle; (2) the vehicle had been circling the area for some time; (3) the driver parked in a public housing parking lot; (4) the lot was dark in a section of the Borough with a high incidence of illegal drug activity and violence; (5) the driver got out of the vehicle, walked to a residence, and then came back and got inside the vehicle; and (6) the driver and defendant gave inconsistent and deceptive answers when asked what they were doing. This information did not, based on the totality of the circumstances, constitute specific and articulable facts, which in conjunction with rational inferences derived therefrom, give rise to a reasonable suspicion of criminal activity. Therefore, the investigative detention of defendant was illegal 5 There is no evidence that the officers had probable cause to believe that defendant or any other person in the car had committed a crime, thus there was no custodial detention. See Commonwealth v. Banks, 540 Pa. 453 (1995); Commonwealth v. Malson, 434 Pa. Super. 155 (1994); Commonwealth v. Hunt, 280 Pa. Super. 205 (1980). -4- 02-2754 CRIMINAL TERM and the pat-down and the seizure of the pipe was illegal.6 Because the seizure of the pipe was illegal, we can end our inquiry. However, we note further that Officer Heredia's seizure of the pipe from defendant's pocket would have been illegal even if he had reasonable suspicion that defendant was engaged in criminal activity sufficient to conduct a legal investigative detention, and reasonable suspicion that the defendant was armed sufficient to warrant a protective pat-down. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a police officer can conduct a protective search for weapons during a lawful investigative detention if the officer reasonably believes that the suspect is armed and dangerous; however the frisk must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry only permits an officer to frisk a suspect for weapons, it does not allow an officer to search a suspect for evidence of a crime or contraband. See Adams v. Williams, 407 U.S. 143 (1972), 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 6 If there had been a lawful investigative detention based on a reasonable suspicion that the people in the vehicle were engaging in illegal activity, Officer Heredia could have patted down defendant's outer garments for weapons only if he had a reasonable basis for believing that defendant was armed and dangerous. In The Interest of S.J., 713 A.2d 45 (Pa. 1998). If there had been a traffic stop, or if the officers had approached the vehicle after it was parked for the purpose of either issuing a citation or a warning based on articulable and reasonable grounds to believe that there was a violation of the cruising ordinance, they could legally have the driver and passengers get out of the vehicle to assure their own safety. Commonwealth v. Freeman, 563 Pa. 82 (2000). However, to have then conducted a pat-down of the driver or passengers would still have required a reasonable belief that the driver or passengers were armed and dangerous. Commonwealth v. Sierra, 555 Pa. 170 (1999); Commonwealth v. Shiflet, 543 Pa. 164 (1995). -5- 02-2754 CRIMINAL TERM 124 L.Ed.2d 334 (1993), the United States Supreme Court adopted the "plain feel" doctrine, and held that during the course of a lawful Terry frisk a police officer can seize non-threatening contraband detected by a sense of touch only if the criminal nature of the item is immediately apparent to the officer conducting the frisk. See also, Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998) (adopting plain feel doctrine under Dickerson). "Immediately apparent" means that the officer must readily perceive, without further exploration or searching, that what it felt is contraband. Commonwealth v. Fink, 700 A.2d 447 (Pa. Super 1997). In Commonwealth v. E.M., 735 A.2d 654 (Pa. 1999), the Supreme Court of Pennsylvania considered the plain feel doctrine, when during an investigative detention a police officer conducted a protective pat-down and felt a soft bulge in the suspect's pant pocket. The officer testified that he knew it was not a weapon, but believed the bulge contained contraband. The officer reached into the suspect's pocket and pulled out a large bundle of money. The officer searched other pockets and removed small glassine packets containing contraband. The Court stated that the officer did not "plainly feel" contraband when frisking the suspect and concluded that the record did "not support a finding that the object felt during the frisk [of the suspect] was immediately apparent to [the officer] as contraband." Thus, the officer acted outside the scope of a legitimate Terry frisk by reaching into the suspect's pocket. The Court held that all evidence seized by the officer from the suspect must be suppressed. -6- 02-2754 CRIMINAL TERM In the case sub judice, Officer Heredia testified that he felt a crack pipe in defendant's pocket. However, by using his sense of touch during the pat-down, the criminal nature of the pipe was not immediately apparent to him. Although he could feel the pipe, he could not have known that the pipe contained crack cocaine. The pipe could have contained smoking tobacco or have been empty. Because Officer Heredia could not have known that the pipe was used for crack rather than a legal purpose, the criminal nature of the pipe was not immediately apparent to him. This is obvious by his twice asking defendant if it was a crack pipe. Because Officer Heredia knew the item was not a weapon and because the criminal nature of it was not immediately apparent, there was no legal basis for him to reach into defendant's pocket and seize the pipe. For all of the foregoing reasons, the motion of defendant to suppress evidence of the seizure of the pipe, and all evidenced gained therefrom, must be granted. ORDER OF COURT AND NOW, this day of May, 2003, the motion of defendant to suppress evidence of the seizure of a pipe from his pant's pocket, and all evidence gained therefrom, IS SUPPRESSED. By the Court, Edgar B. Bayley, J. -7- 02-2754 CRIMINAL TERM Jonathan R. Birbeck, Esquire For the Commonwealth Ellen K. Barry, Esquire Assistant Public Defender :sal -8-